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


Queen's Bench Division

[1993] Imm AR 210

Hearing Date: 2 November 1992

2 November 1992

Index Terms:

Political asylum -- Turkish Kurd -- arrived in United Kingdom after entering Germany -- Secretary of State declined to consider application on the merits -- whether decision reasonable -- whether it had been practical for applicant to seek asylum in Germany -- whether Secretary of State had unreasonably concluded the applicant had no well-founded fear of persecution in Germany -- on whom lay the burden of proof of showing that Germany was not a safe country. HC 251 para 75.


The applicant for leave to move for judicial review was a Turkish Kurd who, with his wife had claimed political asylum on arrival in the United Kingdom. The Secretary of State concluded that the applicant could have claimed asylum in Germany where he had disembarked: he accordingly refused to consider the application on the merits and decided to return the applicant to Germany. The applicant claimed he had never disembarked in Germany. In the alternative counsel argued that the applicant had had no practical opportunity to claim asylum in Germany: he had not been aware that he had then arrived in a safe country, he spoke no German and he had been told by his agent to remain silent until he arrived in the United Kingdom. The case, in the circumstances was to be distinguished from Dursun and there were exceptional circumstances which the Secretary of State had overlooked. Counsel also argued that the attacks on Turkish immigrants in Germany by non-government groups made it not a safe country. Held 1. On the facts it was clear that the applicant had disembarked in Germany and had had an opportunity to claim asylum there. 2. The Secretary of State's decision could not be held to be Wednesbury unreasonable: he had not overlooked any material matters. The case could not, in that regard and on the facts, be distinguished from Dursun. 3. Following Dursun it was for the applicant to show that Germany was not a safe country, not for the Secretary of State to demonstrate that it was. There was no sufficient evidence before the court to support the applicant's contention. That the Secretary of State did not, as in the case of Singh, have the opportunity of making specific enquiries about that issue did not shift the burden of proof on to him. 4. The applicant could not shield behind the alleged instructions of his agent to keep silent until he reached the United Kingdom: that did not allow him to avoid the need to apply for asylum in Germany. 5. The facts of the case did not justify a departure from the Secretary of State's policy or the granting of leave to move for judicial review." . . . such an argument would be open to all persons who have come through a friendly third country": "it would throw the whole of the process into disarray".

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Mangal Singh [1992] Imm AR 376. Huseyin Dursun v Secretary of State for the Home Department (of 25 February 1991) [1993] Imm AR 169.


Miss P Lawrence for the applicant; M Shaw for the respondent PANEL: Otton J

Judgment One:

OTTON J: This is an application for leave to move for judicial review by Yadirgi Musa. He seeks to challenge the refusal by the United Kingdom immigration authorities of leave to enter, and also the decision to deport him to Germany. The applicant comes from Kayseri in Turkey. He is a Kurd and a Muslim. In 1986, it is said that he became a sympathiser of the TDKP which is an anti-government illegal party. In his affidavit he sets out the political activity which he indulged in over a number of years. He states that he has been arrested on three occasions, and on the last occasion he was tried and sent to prison for eight years and four months. However, after he had spent only five months in prison, he escaped from prison. It was immediately necessary for him to flee the country, and he made the necessary clandestine arrangements to do so. He managed to get on to an air flight from Turkey which landed in Germany. It is said that he did not know that he had arrived in Germany. He does not speak English or German and he was not aware of the country that he had landed in, save that it was not England. In the event he eventually travelled from Frankfurt to the United Kingdom. On his arrival at Heathrow, he, along with his wife, applied for political asylum on 20 October. They were questioned by the immigration authorities and were given temporary admission by letter and told to report again to the immigration officer on 22 October 1992. On that occasion they were handed a letter stating that the application for political asylum had not been considered. It stated that he and his wife had arrived from Germany and had spent at least one hour there so that they would be sent back to Germany where it would be appropriate for them to make an application for political asylum. He was also handed a notice of refusal of leave to enter and a further document setting out removal directions for 29 October by Philippines Airlines to Germany. The applicant does not wish to go to Germany, nor does his wife. It was always their intention to apply for political asylum in this country on arrival. He has a brother in this country, and he contends, although counsel does not put it forward with any marked enthusiasm, that he qualifies within the policy as a member of a family to enter this country. None the less, he would prefer to live in the United Kingdom than he would in Germany. The first issue which arises is whether in fact he did go through a third country, namely Germany. His case is, as I have already indicated, that the plane in which he was travelling did land, but he remained on the plane. He never got off, he never entered Germany as such. There is a hint that at worst he might have got off the plane and entered transit. He maintains that the plane only stopped for about 45 minutes. If that were so, it would cast this application in a totally different light from the one that I am obliged to consider it in. The immigration officials, of course, are in constant contact with airlines, Interpol, and their own network, particularly throughout Europe, and there is evidence before me from the appropriate official that as a result of his inquiries it became apparent that the applicant and his wife had arrived at Frankfurt, and instead of going through transit, they had entered the country. They then presented themselves for disembarkation from that country in the normal way one departs from Germany. Their names appear, albeit their false names as on their passports, the tickets have been produced, and I have seen the passenger manifest. There is abundant evidence here to indicate that they actually entered Germany, and then departed from it. The Secretary of State's policy is that where there is a third country through which the applicant has passed which is signatory to the United Nations Convention on Refugees, and where the applicant has had an opportunity of applying for political asylum, the applicant should be returned to that country to make his application unless there are exceptional circumstances. This question of exceptional circumstances is of course a matter for the Secretary of State. As the Master of the Rolls said in the recent decision of R v Secretary of State for the Home Department ex parte Dursun 25 February 1991, having referred to this policy: "That is the Secretary of State's policy and it is not for us to express a view as to whether it is a correct policy or an incorrect policy, provided it does not conflict with the law of this country, which is not suggested." Therefore, it seems to me that this case falls fairly and squarely within the policy, and the Secretary of State acted in accordance with law in exercising his discretion by invoking the policy and deciding to return these applicants to Germany. On the evidence that was before him, and indeed before this court, there was clearly an opportunity for the applicants either individually or through their accompanying agent, who is mentioned in the affidavit, to make such an application on arrival in Frankfurt. In those circumstances, it seems to me that the applicant is in grave difficulty. Miss Lawrence has represented Mr Yadirgi this morning and has, if she will permit me to say so, taken every point that it is possible to take, and has sought to persuade me to go behind the policy in the circumstances of this particular case. She seeks to distinguish the decision of the Court of Appeal in Dursun by advancing an argument that although there was an opportunity, strictly speaking, to apply for asylum in Germany on arrival, in practice, and in reality, there was no such opportunity to this person. He was not aware of the country he was in. Therefore, he was not able to assess whether he had arrived in a friendly country, or that by making an application for political asylum he might have made matters worse for himself. Secondly, he is Kurdish. He does not speak English or any foreign tongue, and he was given express instructions by his agent to remain silent throughout any questioning by officials, and that the matter would be handled by the accompanying person, his agent. I have considered that submission very carefully, particularly in the attractive way that Miss Lawrence has advanced it, but I have come to the conclusion that I cannot distinguish the case of Dursun or give leave on the basis that the Secretary of State in exercising his discretion has overlooked any material fact or in any way has acted irrationally within the Wednesbury principle. I have come to the conclusion that the facts of this case are not such as to justify a departure from the policy or for me to give leave. It seems to me that such an argument would throw the whole of the process into disarray, and it would be open for all persons who have come through a friendly third country to be able to raise such an argument as a matter of course on the circumstances of their particular case. In any event, the duress of the agent or the fact that the agent took control of the formalities does not in any way amount to any shield or excuse for the principals, namely the applicants themselves. Thus, there was a clear opportunity to apply either themselves, or through their agent, and that opportunity was not taken up. I turn then to consider the second ground which is advanced on behalf of these applicants by Miss Lawrence. Although the matter came before Hutchison J on Friday as a matter of urgency, it was not until this morning that Miss Lawrence indicated to Mr Shaw on behalf of the Home Office that she was to take this point. She tells me -- and I accept without reservation -- that she has received these instructions at a late stage from her instructing solicitor. She has not seen the applicants in person, but she, as she was entitled to do, accepted the instructions and felt obliged to seek leave to amend on that ground. In normal circumstances I would have been inclined to refuse her application for leave to amend, but in a case such as this where the future of a man and his wife hang so much in the balance, I felt it appropriate to accede to her submission and to allow her to amend. That amendment has not been put in writing, but in essence it is that the applicant and his wife have a fear which is well-founded, it is said, of persecution in Germany if they were to be returned there and obliged to make their application for political asylum there. It is said that the mood in certain sections of German society is such that there is now a hardening of attitude towards ethnic minorities. There have been instances of naked aggression and blatant violence against Turks in particular. Miss Lawrence told me that even over the weekend there had been an attack or an incident where neo-Nazis, punks or skinheads had attacked or shown violence towards a hostel which was burnt down in which she says Turks were incarcerated. Thus there is a fear for their safety. I have to approach this with the greatest possible care. Firstly, it is quite clear that it is not for the Secretary of State to refute such assertions made on behalf of applicants for political asylum. It is for the applicant to bring evidence before the court to that effect so that it can be evaluated. The Master of the Rolls said in Dursun at page 3A: "The Secretary of the State in immigration matters, and in particular refugee matters, is in constant contact with all sorts of other countries, through British missions abroad and foreign missions in this country, and it has been stated over and over again in the context of refugee cases that the Secretary of State is entitled to rely on information which comes to him through diplomatic and other channels. If Mr Dursun really says that there is no chance of the Belgian authorities dealing with the matter, it is for him to put some evidence before this court." There is no evidence which this court can act upon. Miss Lawrence has told me about these matters, and I give as much licence to the position as I can, but I have to, as a matter of strict law, say that there is no evidence to support her claims. However, these are matters, if they exist, for the law and order authorities in Germany. It would be quite wrong for this court to seek in some way to criticize the authorities in Germany merely because of some hooligan acts of a very sporadic nature. It seems to me that I would need a great deal more evidence before I could be satisfied that the situation is here that the applicants would not get a fair hearing of their application for political asylum or that if they were granted such asylum they would have a well-founded fear of persecution by local inhabitants. A similar matter was raised before Schiemann J in the case of R v Secretary of State for the Home Department ex parte Mangal Singh [1992] Imm AR 376. In this case, a Sikh arrived in Germany and claimed political asylum. Before that claim had been determined by the German authorities he left and arrived in the United Kingdom where he claimed political asylum, asserting that he had a well-founded fear of persecution from "punks" in Germany. In that case the matter was raised at such a time that the Secretary of State was able to provide confirmatory evidence through the UNHCR that Germany was considered a safe country for Sikhs in a similar position. He, accordingly, refused to consider the application on its merits, and proposed to return the applicant to Germany. In giving his judgment, Schiemann J set out from paragraph 75 of the immigration rules HC 251 the following passage: "Asylum will not be refused if the only country to which the person could be removed is one to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." Schiemann J continues: "In my judgment, that point is simply not an arguable one in the present case. I accept entirely that there is a possibility that in Germany a person of his background may come across punks and other undesirable elements who may conceivably attack him. That risk also exists in this country. It is to be deplored but the position under the law is that it is for the Secretary of State, in the first instance, to come to a view as to whether or not Mr Singh has a well-founded fear of being 'persecuted' (in the words of the relevant definition) and, in my judgment, it is unarguable that the view to which the Secretary of State clearly came, namely that there was no such well-founded fear, is a view to which no Secretary of State could reasonably come. In those circumstances, that ground of application completely goes." Here, of course, the Secretary of State did not have the opportunity to make the sort of inquiries that he was able to make in the case of Singh. However, I am perfectly satisfied that the burden of proof rests on the applicant. There is no evidence to support his claim. There may well be incidents in Germany which have involved ethnic minorities, but that falls very far short of the evidence that this court would need in order to say that Germany was not a safe third country in which these applicants could not seek political asylum. Therefore, although I granted leave to Miss Lawrence to raise this matter, I am satisfied that there is no substance in it. Finally, she says, taking all these matters into account, the Secretary of State should be given the opportunity by me to reconsider the case in the light of all the circumstances which have now come to light. I have some sympathy with that view, but the fact remains that this is a clear case of a safe third country. There is no obligation on the Secretary of State in these circumstances to consider the application for political asylum on its merits. He can, in accordance with the policy to which I have referred, before considering the merits of the claim for political asylum, return the applicants to the safe third country, namely Germany, where they have already had an opportunity to apply for political asylum and where, I have no doubt, they will have a further opportunity to so apply if they so choose. In those circumstances, it seems to me that there is no ground upon which I could grant leave to move for judicial review. The deportation decision and the removal directions do not fall for judicial review, and, accordingly, the application is dismissed.


Application dismissed


KP Nathan & Co, Southall, Middlesex; 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.