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

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

Queen's Bench Division

[1993] Imm AR 250

Hearing Date: 25 November 1992

25 November 1992

Index Terms:

Political asylum -- application by citizen of Sri Lanka -- arrived in United Kingdom from France -- Secretary of State declined to consider application on its merits -- decided in accordance with policy to return applicant to France -- applicant asserted on basis of knowledge of other cases that he would not be re-admitted to France -- Secretary of State satisfied that applicant would be re-admitted -- whether Secretary of State's approach unreasonable -- whether Secretary of State obliged to explain why he believed applicant would be re-admitted to France -- whether application for leave to move for judicial review should be adjourned to give applicant opportunity to gather further evidence in support of his contention.

Held:

The applicant for leave to move for judicial review was a citizen of Sri Lanka who had applied for political asylum on his arrival in the United Kingdom. In accordance with his declared policy the Secretary of State refused to consider the application on the merits: he decided to remove the applicant to France. Counsel for the applicant argued that there was a real likelihood that France would not re-admit the applicant, contrary to the belief expressed by the Secretary of State in a certificate before the court. If the court were not minded to grant leave to move for judicial review, it should adjourn the matter to allow the applicant to gather additional evidence in support of his contention that others returned to France had not been re-admitted. Held 1. The approach by the Secretary of State was not Wednesbury unreasonable and followed his stated policy. 2. There was no evidence before the court to show that the applicant would not be re-admitted to France. The Secretary of State had certified he believed that the applicant would be re-admitted. The court had to take such a certificate at its face value and the Secretary of State was not obliged to give reasons for his belief. 3. The application would not be adjourned: there was no suggestion that the additional evidence would be available very quickly: the longer the applicant remained in the United Kingdom, the more difficult it would be to return him to France.

Counsel:

U Cooray for the applicant; R Jay for the respondent PANEL: Schiemann J

Judgment One:

SCHIEMANN J: This is an application which started off as an application for leave to apply for judicial review but then to a degree modified itself in the course of submissions into an application that, if I were not minded to grant leave to apply for judicial review, I should grant an application for an adjournment to permit further evidence to be filed. It is another case of someone coming, I think from Sri Lanka, who came from France on the present occasion, or so it would seem, and the Secretary of State has refused to consider his application for asylum here on the basis that that application should be considered by the French, that being the country from which he came. The practice of the Secretary of State is set out in the statement which he made in answer to a parliamentary question in the House of Commons on 25 July 1990, which effectively says that an application for asylum from a passenger who has arrived in the United Kingdom from a country other than a country in which he fears persecution will not normally be considered substantively, but the passenger will be returned to the country from which he embarked. The application as originally put in the Form 86A was on the basis that the applicant would contend that the Secretary of State had no evidence that he embarked from, or spent a substantial period of time in, any particular EEC country before he came to the United Kingdom, especially the country to which removal directions had been given. That is not the way the matter has been argued in front of me. The applicant's counsel, Mr Cooray, no doubt has been discouraged by my judgments in three earlier cases when, broadly speaking, the same point was being taken, the point essentially being that the applicant says he could not remember where he was taken from and the Secretary of State's evidence was too thin for the Secretary of State to be sure. That point is not the one taken in front of me. The one taken in front of me is a rather different one. It is said by Mr Cooray, albeit only extremely thinly supported by evidence in the present case and very thinly supplemented by anecdotal evidence given to me by Mr Cooray, that in a number of these cases, the intending claimant for asylum having arrived here, the British authorities, having taken a view that some third country from which he came was the most appropriate one to deal with the application, send him there and that country, being no keener to consider his application than the United Kingdom, send him back here. Mr Jay on behalf of the Home Secretary accepts that this does happen. He is not prepared to accept, and there is no evidence which would lead me to conclude, that this happens in the majority of cases or indeed in a very large number of cases. What is said by him is that, where there is such "a renvoi", if I can use a term from another branch of the law, then the Secretary of State knuckles down to it and considers the case. He says that, the longer a person stays in this country, the more likely it is that the country from which he comes here will say, "The appropriate country to examine this is the United Kingdom because the man or woman has been here longest -- longer than they were in France, Belgium or wherever they may have come from". One can see that there is room for a fair amount of mutual irritation between Foreign Offices and Home Departments in the various countries, and meanwhile the unfortunate would-be claimant gets shuttled backwards and forwards. Mr Cooray says that in those circumstances his client should not be shuttled to France. I have a good deal of personal sympathy with the intending claimant in these circumstances, but it does not seem to me that there is evidence in front of me at the moment which permits me to say that the Secretary of State's action in sending him to France is unreasonable. The Secretary of State says in his statement that he is satisfied on information available that he, the applicant, will be re-admitted there. That is in the standard form which I have already seen three times this morning and I do not doubt appears in scores of such applications. But none the less the court has to take these certificates by the Secretary of State at their face value unless the applicant can show that there is no basis upon which the Secretary of State could be so satisfied. It is not incumbent on the Secretary of State to set out the basis upon which he was satisfied in each case. Where an applicant can raise a substantial counterclaim, as it were, a case showing that the person concerned is not likely to be re-admitted, then the Secretary of State may be put in a position where effectively he would have to file evidence. That will depend on the situation as it arises. But in the present case that situation has been nowhere near reached and indeed Mr Cooray accepts this. That is why he applies, as an alternative, for an adjournment. The difficulty with granting an application for an adjournment (a) is that I am not satisfied from what he has told me that the evidence is just round the corner or likely to carry the day if produced, and (b) the longer the time taken to gather the evidence (and inevitably this type of exercise will take time), the longer the applicant will be in this country and therefore the greater the chance of that very evil against which Mr Cooray seeks to safeguard his client, namely, coming back to this country, will take place, because the French will say, "Yes, but his links with the United Kingdom are the greater because he has been sitting around in England whilst this case has been going on". In all the circumstances, and bearing in mind the relative simplicity of a journey across the channel even in a storm in November, I refuse this application both for an adjournment and for substantive relief.

DISPOSITION:

Application refused

SOLICITORS:

Markandan & Co, London, E12; Treasury Solicitor

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