The Queen v. Secretary of State for the Home Department, Ex parte Ahmed Gamzmalhalio Abdullah

JUDGMENT

(As approved by judge)

MR. JUSTICE PILL: This is an application for leave to apply for judicial review. It was made before Cresswell J. on 23^rd December 1991. The case was then adjourned upon the proposed respondent undertaking not to remove the applicant from the jurisdiction until after the determination of an application for leave.

I heard counsel in support of the application and, without objection from him, counsel on behalf of the Secretary of State, the proposed respondent. I propose to grant leave and in doing so make a few remarks, for two reasons: first, the point raised is one which may arise more generally and it may be helpful if I indicate the reasons for which I am giving leave; and second, I recognise the force of the argument addressed to me on behalf of the proposed respondent as to why leave should not be given, and it may be helpful to have a brief record of the reasons why I grant leave.

In December 1990 the applicant fled Sudan believing himself to be at risk. He went to Germany and claimed asylum from the German authorities. He was detained in a refugee camp in Pronischweig. After eight or nine months he came to this country from Germany and he claims that he is a refugee from Germany. He claims to have a fear of persecution in Germany. I say no more than that about the facts.

On behalf of the Secretary of State it is submitted that there is no arguable ground for the application, which is for leave to apply to quash the decision of the Secretary of State dated 20^th December 1991 to remove the applicant from the United Kingdom. It is submitted that the two applications, namely that there is a fear of persecution both in the Sudan and in Germany, are in substance a single application and the applicant cannot alter that position by seeking to characterise them as two applications for asylum, one from each of the countries mentioned. It is further submitted that, however the application is characterised, the procedure which in fact is fair has been followed and that the Secretary of State was entitled to reach the decision he did, and it is not arguable that the decision should be quashed.

The real challenge, it is accepted, is upon the basis that the third country involved, i.e. Germany, is not a safe country. The applicant indeed submits that what in substance he is seeking is a finding that he has a well-founded fear of persecution within the terms of the 1951 Convention in Germany.

The Secretary of State does not challenge that the applicant was in good faith in taking the route he did. In other words it is not suggested that going to Germany was a device to create a situation whereby he might have a better case for asylum in the United Kingdom.

On 20^th December the Secretary of State wrote a full letter to the applicant's solicitors. That was accompanied by a notice to which I will also refer in a moment.

I find first that it was made clear at the relevant time that the applicant was seeking asylum from Germany, and he was entitled to have his application considered on that basis. He was entitled to a proper consideration of that application.

What is said on behalf of the respondent is that in substance (if not in form) proper consideration was given, that if a procedure other than the usual procedure was followed in relation to the German claim, no injustice has been done, because the Secretary of State has clearly considered the evidence about Germany, and there is no real prospect of a different decision being reached if some other or further procedure had been or is to be followed. The letter of 20^th December 1991 deals in substance with the German application and the conclusion was reached which the Secretary of State was entitled to reach.

I recognise the force of that argument. It may be difficult for the applicant to show that he had a well-founded fear of persecution in 1991 in Germany, a member of the European Community. However, he is entitled to a proper consideration and I find it arguable that no sufficient consideration was given to his claim. I underline that even though I am giving my reasons, I am not commenting upon the eventual merits of the claim or seeking in any way to prejudge what the finding will be on the full hearing.

I have been referred to the Secretary of State's descriptive note for the Committee Stage of the Asylum Bill in which procedures for handling asylum are set out and it has not been argued on behalf of the respondent that this inaccurately states, for present purposes, what the accepted procedure is. Paragraph 7, under the heading "Refusal of asylum or exceptional leave" states: "Refusal of asylum and exceptional leave is normally made only after the applicant has had the opportunity to state his case at a full interview. Where the Asylum Division has reached an initial view that an applicant's claim to remain in the United Kingdom should be refused and there is no in-country right of appeal to the IAA, he will be informed in detail of the reasons for reaching this decision and invited to provide further comments usually at a further interview. If following receipt of those comments it is decided to proceed with the refusal, the applicant will be given a final notice of refusal. Where there is an in-country right of appeal the detailed reasons for refusal may be challenged before the IAA."

There was an initial interview, (as the letter of 20^th December recites) the nature of which will be seen. There was then a reference to the UKIAS, who wrote to the Home Office. There were also representations to the Home Office on behalf of the applicant by his solicitor. There was a further interview on 20^th December and the Home Office have helpfully provided their note of that interview.

However, there was no full consideration at that interview of the claim undoubtedly the applicant was making, and the claim which had been made by his solicitor on his behalf, that he had a well founded fear of persecution in Germany. He was not interviewed on 20^th December in substance about that claim.

I do not propose to refer to the interview in detail, but on page 3, when the applicant began speaking about the situation in Germany, as he in his particular case alleged it to be and the circumstances in which he had been living there, he was asked the question, "Have you been into detail about this with your solicitor?" and the answer was "Yes." The matter was then not pursued by the interviewing officer, contrary to the wishes of the applicant and of the solicitor who, it is noted on page 3, asked whether the officer was not prepared to hear more about the problems in Germany.

It is arguable that there was not a sufficient opportunity, as required by the practices of the Home Office, for the applicant to describe his particular complaints about Germany and to put forward a fear he has in the particular circumstances.

With the letter of 20^th December was a formal notice in standard form which stated: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Sudan…". The formal notice while referring to Germany as the third country, makes no reference to the claim in relation to Germany. Mr. Garnham for the Secretary of State says that that notice should not be considered on its own, but considered with the letter of 20^th December 1991, and I can see the force of that argument.

However, it is arguable, in my view, together with the other points I have mentioned, that the Home Office have illustrated by the issue of a notice in the form in which it was issued that they had not sufficiently considered the claim which the applicant was making, namely that he had a well founded fear of persecution in Germany.

Leave is granted.