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

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

Queen's Bench Division

[1993] Imm AR 151

Hearing Date: 6 November 1992

6 November 1992

Index Terms:

Political asylum -- refusal by Secretary of State -- Turkish Kurd -- grant however of limited exceptional leave to remain -- Secretary of State's policy on admission of dependants when exceptional leave granted -- whether unreasonable in this instant case for Secretary of State to refuse to depart from that policy -- practice of Secretary of State not to give reasons for refusing political asylum when applicant granted exceptional leave at time of refusal -- whether the court should review that policy when, in this case, a reason had been given.

Appellate authorities -- appeals against refusal of extension of leave when exceptional leave to remain expired assertion by counsel that Home Office practice of permitting such appeals to proceed was unlawful.

Held:

The applicant for leave to move for judicial review was a Turkish Kurd to whom the Secretary of State had refused political asylum but to whom he had granted exceptional limited leave. The applicant had sought to bring in his dependants, but in accordance with his publicly announced policy, the Secretary of State had refused that request. Counsel contended that in the circumstances, it was unreasonable for the Secretary of State to refuse to depart from his declared policy, in this case. Counsel also sought judicial review of Secretary of State's general policy of giving no reasons for refusing asylum when he granted exceptional leave. Counsel also attacked the refusal by the Secretary of State to grant political asylum. He acknowledged that when the Secretary of State granted exceptional leave and then subsequently refused to vary or extend that leave, an appeal might, under present practice, be lodged with an adjudicator: he contended that that practice was unlawful. Held 1. The publicly announced policy of the Secretary of State as to the admission of the dependants of those granted exceptional leave to remain, could not be challenged, as counsel accepted, before the court. 2. There was no evidence to suggest that the Secretary of State had acted unreasonably in refusing in this case to depart from his normal policy. 3. It might be that in some future case there would be a challenge in the courts to the Secretary of State's policy of not giving a reason for refusing political asylum, when exceptional leave was granted, but in this case the Secretary of State had given a reason, and the issue did not arise. 4. Whether it was lawful or unlawful for an appeal to lie to an adjudicator when the Secretary of State refused to extend or vary exceptional leave was another issue that did not arise in this case. 5. There were no grounds on which it would be appropriate to grant leave for judicial review.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

R de Mello for the applicant; R Singh for the respondent PANEL: Roch J

Judgment One:

ROCH J: This is an application for leave to move this court for judicial review of first, a decision of the Secretary of State of 5 October this year to refuse the applicant political asylum, and secondly, the Secretary of State's practice, of which that decision is an example, not to give reasons for the refusal of political asylum where, at the time of the refusal, the Secretary of State grants the applicant leave to remain in the United Kingdom either in the form of "exceptional leave" or in the form of "limited leave". The other decision which the applicant seeks to challenge is the decision of the Secretary of State not to depart from his normal policy relating to family reunion, where he refuses an application for political asylum, but at the same time grants exceptional leave for the applicant to remain in the United Kingdom. That policy was set out in an answer given in the House of Commons, but it appears conveniently in the decision letter of 5 October this year, and the policy is in these terms: "This grant of exceptional leave to remain does not entitle your spouse or children under 18 to join you. An application for them to do so cannot normally be considered until 4 years from the date of this letter. This is subject to your having received further grants of exceptional leave. The normal requirements of the Immigration Rules regarding support and accommodation of relatives would have to be satisfied. An application for family reunion may be granted at an earlier point if there are compelling compassionate circumstances." That paragraph of the decision in effect is another way of expressing the policy. (See Hansard 28 July 1988, col 424. The then Secretary of State for the Home Department, in a written answer set out the policy. The exchange was in these terms: Asylum Mr Janman: To ask the Secretary of State for the Home Department what is his policy on the granting of settlement to asylum seekers who are given exceptional leave to remain in the United Kingdom and on the admission of their families; and if he will make a statement. Mr Hurd: Policy in this area has recently been reviewed. In many cases settlement will not be at issue since those granted exceptional leave will return to their own countries when circumstances allow. In the remainder a person given exceptional leave will normally be granted settlement on application after seven years' residence in the United Kingdom, subject to the general provisions of paragraphs 97 to 100 of the immigration rules. In certain circumstances settlement may be granted earlier than, or withheld after, seven years. Exceptional leave will normally be granted in stages of one year, three years and three years, although this pattern may also be varied. Applications from the spouse and minor children of a person on exceptional leave to join him or her will usually be granted after four years, subject to the general requirements of the immigration rules on the admission of spouses and dependants An application for family reunion may be granted at an earlier point if there are compelling compassionate circumstances. See also IA Macdonald & NJ Blake, Immigration law and practice in the United Kingdom (3rd ed) London 1991 p 314). The facts of the case are these. The applicant is a Turkish Kurd. He came to this country on 18 October 1990, although the precise circumstances in which he gained entry to this country are not clear. The probability is that he did not have entry clearance nor had he leave to enter. On 29 October his solicitors wrote to the Home Office applying for asylum. An asylum questionnaire was sent to the applicant to complete, and that is with the original application. Subsequently the applicant was interviewed. Before the interview that questionnaire was completed and sent in by the applicant on 18 March 1991. The interview took place on 24 September 1991. On 13 January this year the applicant asked the immigration authorities to expedite his application on the ground that he was extremely worried about the safety of his family: his wife and children were in Istanbul. On 15 May this year the applicant's wife applied for entry clearance to come to the United Kingdom. It would seem that in the interview by the entry clearance officer, which took place on 15 May, the applicant's wife said that her four children and she were living in a four-bedroomed flat owned by her father-in-law in Istanbul. Three of the children were at school. They were being supported by her father-in-law from income coming from rented houses The applicant's wife complained of being unwell and a medical report was seen stating that she was suffering from reactive psychological depression and was undergoing necessary treatment. The decision to refuse political asylum to the applicant was taken on 5 October this year, as was the decision to refuse to alter the normal policy in respect of family reunion. Before the decision of 5 October was given, an application for judicial review had already been made. Leave to move the court was granted by Macpherson J. The nature of that application was the seeking of an order of mandamus requiring the Secretary of State to deal with the application for political asylum. That application came before Henry J on 7 October this year, and by that time the application for political asylum had been dealt with and had been refused. Consequently Henry J adjourned the matter. Following that adjournment there was an exchange of letters between the applicant's solicitors and the Treasury Solicitor on behalf of the Secretary of State, and the matter came before me on Wednesday of last week, at which time Mr de Mello, who appears for the applicant, produced fresh grounds of application and fresh requests for relief. I adjourned the matter last week until today. The Secretary of State on both occasions has been represented by Mr Singh. Mr de Mello attacks the decision to refuse political asylum. He attacks the failure to give reasons for the refusal, because exceptional leave to remain has been granted. He points out that exceptional leave to remain is an exercise by the Secretary of State of the royal prerogative, and that is not leave to remain in the United Kingdom which comes within the Immigration Act or the immigration rules Consequently Mr de Mello argues that, if there is a refusal to extend the exceptional leave to remain, there can be no appeal to an adjudicator against that refusal, because the whole system of granting exceptional leave to remain in the United Kingdom is outside the Act and the immigration rules It seems that if the Secretary of State does refuse to extend or renew exceptional leave to remain, it is his practice to allow the individual to appeal to an adjudicator. It may be that at some stage the court will have to decide whether that practice is lawful or unlawful. (The issue of jurisdiction would of course be a matter for the appellate tribunals, subject to appeal to the High Court and not a matter for the Secretary of State to decide. It is correct however that the Secretary of State has not hitherto challenged the jurisdiction. The leading case is Lobo (2909): it has not hitherto been reported and is subjoined to this case. In the later case of Bolaghi (6384), the jurisdiction point was not raised by either party nor was it argued). Mr de Mello submits that it is unlawful, and uses that as an additional reason why the practice of the Home Secretary of not giving detailed reasons for refusing political asylum should be reviewed by the court in those cases where he grants exceptional leave to remain. Another reason is that if political asylum is granted, then the individual is entitled to have his family join him in this country, whereas if he remains here under exceptional leave to remain, the normal policy is that he has to be in this country for four years before application can be made for his wife and family to join him, the reason for that being that it has to become clear that he is likely to remain in the United Kingdom and to settle here before his family are allowed to join him. Mr de Mello points out that in Mr Muslu's case, and it seems not to be unusual, it took some twenty months from the time that his application for political asylum was in its proper form for the Secretary of State to reach a decision. The policy about family reunion is this: the four-year period runs from the date of the decision letter. Mr de Mello complains that the Secretary of State should take into account the twenty months delay, which is due to the fact that there has been an enormous increase in the number of applications for political asylum. They have increased from 4,389 in 1985 to 44,890 in 1991. The delay is because of the insufficiency of staff to deal with those applications Consequently, Mr de Mello says, the Secretary of State, acting reasonably, would reduce the four-year period by the delay of twenty months At the very least, Mr de Mello argues, he has prima facie cases on these points which ought to come before this court. There is no question of the policy of the Secretary of State in relation to family reunion being declared by a court as being either ultra vires, unlawful or unreasonable. The nature of that policy, Mr de Mello concedes, is a matter for Parliament and not a matter for the courts Is there an arguable case that the Secretary of State's application of that policy to the present case is flawed or unreasonable? In my judgment there is no such argument available. The policy is that an application for family reunion cannot normally be considered until four years from the date of the decision letter. It is clear from the Treasury Solicitor's letter of 6 November this year that the Secretary of State did take into account the length of time taken to resolve the applicant's application for political asylum, in considering whether family reunion should be granted before the expiry of four years from the decision letter. The Secretary of State was not satisfied that Mr Muslu's case was an appropriate case in which to make an exception to his normal policy. The reasons for that are contained in the letter of 19 October 1992, where the circumstances of Mrs Muslu and her four children in Istanbul, and her medical condition, are fully set out, together with the Secretary of State's conclusion that there were not compelling and compassionate circumstances which have to exist before he grants family reunion prior to the expiration of the four-year period. The next matter is whether leave to move should be granted so that the practice of the Secretary of State of not giving reasons for refusal of political asylum where he grants exceptional leave to remain in the United Kingdom, should be reviewed by the court. In the present case the Secretary of State has given the reason why political asylum was refused. Mr Singh submits, and I agree with his submission, that this is not a case in which this issue should be considered. The applicant would not be able to achieve by an application for judicial review of the Secretary of State's practice anything which he has not had already. He has the Secretary of State's explanation. It consists of a single reason. The next point is whether leave to move should be granted so that the court could review the adequacy or reasonableness in the Wednesbury sense of the single reason given. In my judgment an application on that ground would have no prospect of success Mr Muslu's application for political asylum was based on his alleged political activities in Turkey. He claimed that he was involved in an organisation named as the Turkish Communist Party Marxist Leninist (TKP-ML). There is also in Turkey a Turkish Communist Party (TKP). Mr Muslu's alleged membership of TKP-ML was set out in his answers to the questionnaire. In the interview on 24 September 1991, this assertion by Mr Muslu was investigated by his being asked this question: "How does TKP differ from TKP-ML?" His answer was: "TKP is an older communist organisation whilst TKP-ML is simply for the Kurdish community." He was then asked: "Is TKP- ML politically different from TKP?" His answer was, "In general TKP-ML is for the Kurdish community in Turkey. It highlights injustices against Kurds and educational issues and other problem for Kurds . . .". The Secretary of State compared those answers with information available to him about TKP-ML, and the information the Secretary of State had was that that party is not Kurdish orientated. The fact that the description of TKP-ML as being simply for the Kurdish community, and a party which highlighted injustices against Kurds and the needs and problems of Kurds, led the Secretary of State to conclude that Mr Muslu had not been active in that party as he claimed, or at least it cast serious doubt on the credibility of his evidence as to his political activities in Turkey. In my view it cannot be argued that in an application for political asylum based upon political activity with a particular party, the Secretary of State's refusal based on information which indicates that the applicant does not understand the true nature of the party to which he says he belongs, in which he says he is active, is an inadequate reason for refusing political asylum. It seems to me, although it is a single reason, it is an adequate reason for refusal. For those reasons the conclusion that I have come to is that an application for judicial review in this case will have no prospects of success and so I refuse leave.

DISPOSITION:

Application refused

SOLICITORS:

Wilson & Co, London N17; Treasury Solicitor