R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte TK
Queen's Bench Division
 Imm AR 231
Hearing Date: 18 November 1992
18 November 1992
Index Terms:Political asylum -- application by Turkish Kurd aged 16 -- two brothers in United Kingdom -- arrived via Belgium -- Secretary of State refused to consider application on the merits -- decided in accordance with ministerial policy to return applicant to Belgium -- whether in view of age and circumstances of the applicant the Secretary of State's decision was unreasonable -- whether the applicant's two brothers in the United Kingdom could allow him to claim "substantial links" with the United Kingdom -- the meaning of that phrase. Dublin Convention art 4.
Held:The applicant for leave to move for judicial review was a Turkish Kurd whose age for the purpose of the application, the court accepted was 16. He arrived in the United Kingdom from Belgium: he was refused leave to enter: he claimed asylum. The Secretary of State declined to consider his case on the merits: in accordance with his publicly stated policy which reflected the provisions of the Dublin Convention, he proposed to return the applicant to Belgium. On application for leave to move for judicial review it was argued that in all the circumstances the Secretary of State's decision was unreasonable. Counsel relied inter alia on the age of the applicant and the fact that he had two brothers in the United Kingdom, thereby demonstrating substantial links with the United Kingdom. For the Secretary of State it was argued that the circumstances of the applicant were not such as to put him within any of the categories which the Secretary of State, in his stated policy had indicated he would consider exceptionally. Held 1. Following Aksu, the phrase "substantial links with the United Kingdom" in the ministerial policy statement of 1990 had in substance the same meaning and restriction as the provisions of the Dublin Convention. 2. It followed that the relations the applicant had in the United Kingdom did not constitute substantial links with the United Kingdom. 3. In the light of his stated policy, the Secretary of State's decision in this case could not be said to be Wednesbury unreasonable.
Cases referred to in the Judgment:CCSU v Minister for the Civil Service  AC 374:  3 All ER 935. R v Secretary of State for the Home Department ex parte Ali Aksu and anr (unreported, QBD, 2 November 1990). R v Secretary of State for the Home Department ex parte Brind  1 AC 696:  1 All ER 720.
Counsel:A Nicol for the applicant; Miss A Foster for the respondent PANEL: Auld J
Judgment One:AULD J: This is an application by TK for leave to move for judicial review in respect of a decision of the Secretary of State of 17 November 1992 refusing to consider TK's application for asylum. TK is a Kurd and a Turkish national. He is a youth. There is some uncertainty about his age, he and those close to him maintaining that he is aged 16 and the Secretary of State at one stage of the matter, at any rate, maintaining that he is older, about 18-1812. For reasons that will become apparent, I propose to deal with his application on the basis that he is 16. On or about 2 November 1992, he left Turkey for the United Kingdom. He did so as part of a travel arrangement made for him by an organisation in Turkey which specialised in providing a means of escape, for persons of his persuasion, from persecution in Turkey. His route took him through Belgium and, in particular, took him to the port of Zeebrugge. After a short time in Zeebrugge, he took a ferry to the United Kingdom, to the port of Felixstowe, arriving there on 8 November 1992. On arrival, he sought leave to enter the United Kingdom. On 10 November he was refused leave to enter. The grounds of refusal were in these terms: "You have asked to enter the United Kingdom as an EC national but I have reason to believe that the passport you have produced to me is forged. In the light of this, I consider that your exclusion from the United Kingdom is conducive to the public good. Furthermore, you do not hold a valid national passport or other document satisfactorily establishing your nationality and identity. You have said that you are a Turkish citizen. Therefore, under the Immigration Rules, you are required to have a visa to enter the United Kingdom, but you have no such visa." Removal directions were given either on 9 or 10 November for his removal on 13 November. They were deferred on 10 November and, on 11 November, the applicant instructed solicitors. On 13 November, they made representations to the Home Office on his behalf by letter, in support of an application for asylum that he had earlier indicated. In that letter they set out the substantive grounds for such an application and also stressed his youth, the presence of two close relatives, namely, brothers in the United Kingdom, one of whom had full refugee status, and urged, in the light of the alleged persecution and torture to which he had been subjected in Turkey, that the Secretary of State should consider his application for asylum. By a letter of the same date, 13 November 1992, the Immigration and Nationality Department of the Home Office replied indicating that the appropriate course was for him to be returned to Belgium, whence he had come, so that he could make an application for asylum there. The letter read, so far as material: "The United Kingdom is not normally prepared to entertain claims from individuals who have failed to claim asylum in the first safe country which they reach. If individuals arrive here who could have safely claimed asylum elsewhere on their way to the United Kingdom, they will be sent back to that country for the claim to be dealt with there. The only exception is where the applicant has such close links with the United Kingdom that his or her claim should be considered here." That was a reference to a policy statement of the then Home Secretary of 25 July 1990 pending the United Kingdom ratification of the Dublin Convention of 15 June 1990. Removal directions were deferred until 17 November 1992. The applicant's solicitors in the next few days took statements from a number of relations, a family friend and an expert, primarily going to the age of the applicant and, incidentally, to his family connections in this country. The solicitors faxed that further information to the Home Office on 16 November. On 17 November, the applicant's solicitors wrote again to the Home Office referring to that additional information, requesting that removal be again deferred and an opportunity be given for the solicitors to take further instructions in relation to fresh information. By a letter of the same date, 17 November, from the Immigration and Nationality Department, faxed to the applicant's solicitors, the Department indicated that the Secretary of State had considered the additional evidence but remained of the opinion that, notwithstanding TK's age, whether he was 16 or 18, he could and should have sought asylum in Belgium. The removal directions were then finally set for 11 pm on 18 November 1992, that is, today. It is the letter of 17 November 1992 which is the subject of the proposed challenge. Mr Nichol prefaced his submission by acknowledging that there was no suggestion here of fear of persecution in Belgium, if the applicant were to be returned there, and that he was not alleging illegality in the sense of any breach of immigration rules. His submission is that it is arguable that the decision of the Secretary of State is perverse, that it is Wednesbury unreasonable, having regard particularly to the youth of the applicant which, as I have indicated, I accept for this purpose as being 16. He refers to the grounds of the application, first, the Secretary of State's willingness to make that assumption too; second, that the applicant has two brothers in the United Kingdom, one of whom had been granted refugee status and the other of whom has applied for political asylum here and that, in addition, he has a number of more distant relations and friends in this country; third, that he knows no one in Belgium; fourth, that he only spent a brief time in Belgium; fifth, that his travel arrangements were made for him and he travelled throughout as part of a group; and, sixth, that he has provided information to the Home Office that, despite his young age, he has been tortured on two occasions prior to his departure from Turkey. Mr Nicol's submission is that, given his youth, all those matters assume a greater significance than they might otherwise do in cases of this sort, so as to make it perverse of the Home Secretary to decide to send him back to Belgium to make his application there. In short, it is said that he is vulnerable, if required to do that, in the sense of being sent back to a country where he is on his own and where he has not the age or the experience to deal with such matters adequately on his own. This matter had to be looked at by the Secretary of State, first, in the light of his own policy statement of 25 July 1990, to which I have referred. It reads (so far as material): "The Convention's primary function is to give refugees who cannot turn to their own authorities the protection of the international community. It is an instrument of last resort not a licence for refugees to travel the world in search of an ideal place for residence. Where protection issues do not arise, an application should therefore be dealt with in accordance with normal immigration criteria. 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, if appropriate, to his country of nationality, unless I am satisfied that the country is one in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion, or that it would return him to such a country. 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." Miss Foster submits that to bring this case within the "exception" category in the context of that policy, the applicant, whatever his age, needs to show that he has substantial links with the United Kingdom. In R v Secretary of State for the Home Department ex parte Ali Aksu and Mahmut Demiralay, Nolan J (as he then was), giving judgment on 2 November 1990, expressed the view that the expression "substantial links with the United Kingdom" in this policy statement was, in substance, the same as the test set out in the Dublin Convention, which has been ratified by this country but is not yet in force, to those who seek asylum by reference to family connections. "Family connections", in article 4 of that Convention do not include a brother or brothers. It provides (so far as material) as follows: "The family member in question may not be other than the spouse of the applicant for asylum or his or her unmarried child who is a minor of under 18 years or his or her father or mother where the applicant for asylum is himself or herself an unmarried child who is a minor of under 18 years." Thus, under the Convention, a person of this applicant's age who sought to rely on a brother or brothers in this country would not be able to claim close family connections for that purpose. It follows from Nolan J's view in the Demiralay case that it would not come within the notion of "substantial link" within the terms of the Secretary of State's policy statement of 25 July 1990. It seems to me that I must approach the Secretary of State's decision on the circumstances of this case in the light of his policy statement and in the light of the narrow exception to it which he has set out. Mr Nicol urges that, whether or not that policy is to be applied strictly, it is, at the very least, arguable that the Secretary of State's decision was perverse. Miss Foster has reminded me, as the courts have reminded themselves on a number of occasions recently, of the rigour of the Wednesbury doctrine. See, in particular, per Lord Lowry in R v Secretary of State for the Home Department ex parte Brind  2 WLR 588, in a passage beginning at page 607 at letter H. In my judgment, particularly having regard to the policy which the Secretary of State has set for himself and to which it is reasonable for him to have regard, it cannot be argued here that his decision to refuse to consider asylum was Wednesbury unreasonable, perverse or, in the words of Lord Diplock in the Civil Service Union case  AC 374, at 410 "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". For those reasons, this application is refused.
SOLICITORS:Jane Coker & Co, London N17; Treasury Solicitor
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