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

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

Queen's Bench Division

[1992] Imm AR 534

Hearing Date: 25 June 1992

25 June 1992

Index Terms:

Political asylum -- refusal of application by Secretary of State -- protracted period had elapsed between first and last asylum interviews -- applicant not reminded in later interview of replies to questions in first interview -- applicant's credibility not in issue -- whether Secretary of State had acted improperly -- the relevance of Thirukumar.

Held:

Application for leave to move for judicial review of the refusal by the Secretary of State to grant political asylum to a citizen of Pakistan. The applicant had a long immigration history. He had been interviewed on at least two occasions: some considerable time had elapsed between the two interviews. At the second interview he was not reminded of what he had said during the first interview. The Secretary of State's decision had not turned on the applicant's credibility. Nevertheless, counsel argued, following Thirukumar, that the Secretary of State had acted improperly in failing to remind the applicant of his replies during his earlier interview, when the application was reconsidered and the applicant re-interviewed. Counsel for the Secretary of State sought to distinguish the present case from Thirukumar on the facts. Held 1. It was not of assistance to seek to rely on, or distinguish the case of Thirukumar, save to a limited extent. The question at issue was simply whether in the events which had happened, the consideration of the applicant's case had been conducted fairly. 2. The instant case was not one in which any unfairness arose because of the failure to remind the applicant of what he had said in an early interview. 3. There was no impropriety in the Secretary of State's approach.

Cases referred to in the Judgment:

Sittampalam Thirukumar v Secretary of State for the Home Department [1989] Imm AR 402.

Counsel:

J Manning for the applicant; D Garland for the respondent PANEL: Hutchison J

Judgment One:

HUTCHISON J: This is an application for leave to challenge by way of judicial review a decision by the Secretary of State given on a date which is not quite certain (but I would take to be 16 June of this year) refusing the applicant's application for political asylum. He has a long and complicated immigration history which I do not propose to recite in full, but which can be found set out, it is accepted on his behalf accurately, in the letter from the Home Office dated 24 June 1992. It began with his arrival in this country in September 1986 on a one-month visitor's visa. He then applied for political asylum and was granted a right to remain pending a decision. His application was refused in September 1989. In November 1989 he married a British subject. He subsequently appealed against a deportation order and his appeal was heard by an adjudicator whose consideration of the matter included a consideration of the way in which his application for political asylum was dealt with and finding adverse to him on that issue on 15 March 1991. Subsequently there were a number of other events which it is unnecessary to advert to, but he again made a claim for political asylum when faced with detention and a notice of intention to deport him in April 1992. The clear impression that I have, and this is really accepted, is that what he was requesting was a reconsideration of his asylum application. He was interviewed on 25 May. It was originally, I am satisfied, intended that he should be interviewed on 2 June but because of the so-called urgency the date of the interview was advanced. On 16 June there was faxed the refusal which is the subject matter of this application. It is in fairly brief terms stating: "The position has now been reviewed in the light of the recent interview, documentation your solicitors forwarded and representations made on your behalf by Tony Banks MP. However after very careful consideration I have to inform you that the Secretary of State is still not persuaded that you have demonstrated a well-founded fear of persecution within the terms of the 1951 United Nations Convention. Certainly I am not prepared to reverse the earlier decision." I should have said, and now include in parenthesis, that the previous rejections had been in broadly similar terms. They are to be found recited in the adjudicator's reasons and as I read them they amount not to a decision based on some view of the applicant's credibility, but on the view that the state of affairs in Pakistan was not such as to render the applicant, if he returned, at risk of persecution for a Convention reason. I interpret the present decision, somewhat amplified, though, in the light of page two of the letter of 24 June, in a similar way. It is fair to say that in support of the present application, as is evident from the passages I have cited from the letters, there were forwarded various witness statements which Mr Manning realistically conceded perhaps were not the most convincing or likely to be decisive of the Secretary of State's decision. The basis of the complaint is a complaint of procedural impropriety in that it is suggested that the Secretary of State failed to do what it was incumbent upon him to do, namely, because of the long lapse of time between the previous interviews in relation to the asylum claim and this interview to afford to the applicant the opportunity of being reminded of what had been said at those previous interviews and to advert to the difficulties that then had led the Secretary of State to decide adversely to him and to any such difficulties in the present case. In that connection I was referred to the well-known case of Thirukumar and in particular to the passage in the judgment of Bingham LJ. As a subsidiary point Mr Manning says that in a letter to the MP, Mr Banks, written on 2 June there is an indication that the applicant will shortly be interviewed about his asylum claim and the case will then be reviewed. While he disclaims any intention to suggest that that gave rise to a legitimate expectation (since the applicant did not get to know about it), he indicates that there was an intention to have a further interview. I am satisfied however that that letter is out of date in the sense that the writer was not aware of the fact that the interview had been advanced in date to 25 May. Mr Garland on behalf of the proposed respondent (because notice has been served in this case) took fundamental issue with the way in which Mr Manning put the case. He contends that this case is wholly different from the situation that could arise in the case at port of entry where asylum was claimed and there is no appeal. Here he submits there was a claim by someone who had obtained entry initially and the present reconsideration is simply part of that same claim and is in effect not unlike another minded to refuse interview. He submits therefore that the reason in Thirukumar and the passage in Macdonald at page 306, which are referred to in the grounds, are inapplicable to such case. He submits that there is here no unfairness; the Secretary of State was asked to reconsider the matter; he did so; he reached a decision, not apparently based on a view of credit, but on his assessment of the nature of the complaints against the political situation in Pakistan; and there was no call for him to remind the applicant of what had gone before or matters of that sort. It seems to me that to indulge in such a dichotomy, as those two arguments do, is perhaps fallacious. It does not help, I think, to debate whether Thirukumar does strictly or does not apply to a case such as the present. In any case, and in particular in an asylum case, it is required that matters should be dealt with fairly. I can well envisage that there might be cases in which the history was such that it was necessary that there should be steps taken to remind an applicant for asylum who was seeking a review of matters which had gone before. But there was nothing in the history of the present case which suggests to me that it is such a case or that there was here any procedural unfairness. The applicant was represented by solicitors. He sought a further interview and obtained one. The matter does not appear to have been decided on matters of credibility and in the circumstances I can detect no reasonable ground for contending that there was any procedural unfairness in what took place. I have to remind myself that on judicial review of such decisions the court is not concerned with the view that it might have on whether or not the decision should have been taken but with whether the decision was a lawful one. I can detect in what occurred in this case no ground for saying that there was any impropriety, procedural or otherwise. It is for that reason that I refuse leave.

DISPOSITION:

Application dismissed

SOLICITORS:

Yoga & Co, London NW9: Treasury Solicitor

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.