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

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

Queen's Bench Division

[1993] 1 Imm AR 601

Hearing Date: 9 July 1993

9 July 1993

Index Terms:

Deportation -- order signed by Secretary of State following recommendation by court after applicant's conviction as overstayer -- subsequent application for political asylum -- applicant ignorant of deportation order -- application for asylum refused -- whether following assurances to European Court of Human Rights Secretary of State should have proceeded by way of s 3(5)(a) of the 1971 Act to give applicant right of appeal in which issue of asylum could have been ventilated -- the limit of the assurance to the Court of Human Rights. Immigration Act 1971 (as amended) ss 3(5)(a), 3(6): sch 2 para 24(b).

Held:

The applicant for judicial review was an overstayer. He had been convicted of that offence and recommended by the court for deportation. The Secretary of State acted on that recommendation and signed a deportation order. The order was signed on 24 August 1987: it was not served on the applicant until January 1993. After the deportation order had been made, but before it was served, the applicant sought political asylum. That was refused: the Secretary of State implemented the order. On application for judicial review it was contended that the Secretary of State by maintaining the deportation order signed pursuant to section 3(6) of the 1971 Act had failed to observe the undertaking given to the European Court of Human Rights, in the case of K. In accordance with that undertaking he should have proceeded by way of section 3(5)(a) of the Act, thus allowing the applicant the opportunity, in the appeal process, of raising the issue of political asylum. Counsel for the Secretary of State relied on the limited ambit of the undertaking; the applicant fell outwith its terms. Counsel for the applicant argued that whether or not the applicant should benefit from the undertaking should depend on his state of mind. The assurances given to the European Court of Human Rights excluded inter alia those who claimed asylum after the signature of deportation orders against them: it was an exclusion designed to prevent those who were aware of a deportation order having been made, applying for asylum to delay further its implementation. The present applicant had not known of the deportation order in question when he applied for asylum. Held 1. The terms of the assurance given in K v The United Kingdom were quite clear. 2. The applicant did not fall within its terms.

Cases referred to in the Judgment:

K v The United Kingdom ECHR Decisions and Reports, 52, 38.

Counsel:

R Scannell for the applicant; D Pannick QC for the respondent. PANEL: Sedley J

Judgment One:

SEDLEY J: Mr Scannell moves for leave to seek certiorari to quash the refusal of the Secretary of State to accord to the applicant, Mr Asumda, the benefit of an undertaking which was given by Her Majesty's Government to the European Commission on Human Rights that convicted overstayers who unsuccessfully apply for asylum will be served with notice of intention to deport under section 3(5)(a) of the Immigration Act 1971, thereby attracting a right of appeal on the asylum claim. In the absence of this special course no right of appeal exists, at least until 26 July 1993 when I am told that legislation is expected to come into force according a general right of appeal in such cases. Mr Asumda was given leave on 11 July 1986 to enter the United Kingdom for one month, a grant of leave which was then extended until 1 October 1986. On 17 March 1987 he was convicted of overstaying by the Redbridge justices and was made the subject of a recommendation for deportation. His appeal against that conviction was listed for hearing on 24 July 1987, but was aborted because of the non-attendance of a witness. On 24 August 1987 the Secretary of State signed a deportation order against the applicant on the basis of the recommendation, but the order was not served until January 1993. In between the signing and the service of the order, on 24 September 1987 the applicant sought political asylum in this country. Attempts later in 1987 to reinstate the appeal against conviction and sentence failed and nothing further of any moment in this case happened until 20 August 1992 when the applicant was served with a "minded to refuse" notice. On 17 September there was a response by solicitors to that notice and on 4 November 1992 a final refusal notice was served. During 1993 the applicant's present solicitors, who are specialists in this field, as anybody reading the correspondence which has been excellently conducted would immediately realise, made representations on the merits of the asylum claim and argued, in particular, that the benefit should be accorded to the applicant of the concession to which I have referred and to which I shall refer in more detail in a moment. On 19 April, however, the Secretary of State replied, maintaining the refusal of asylum, and on 29 April declined by letter to apply the concession in the applicant's favour. The concession in question was one made by the Government of the United Kingdom in K v The United Kingdom (No 9856/82) decided in the European Court of Human Rights on 14 May 1987. The applicant in that case had been convicted of overstaying and had been recommended for deportation on 19 February 1982. He had applied for political asylum on 24 January 1982. It was not until 15 April 1982, however, that the Secretary of State had made a deportation order against him, at a date therefore when the applicant had an extant asylum claim before the Secretary of State. If Mr Scannell has a basis for obtaining judicial review of the Secretary of State's refusal to revoke the deportation order and to apply the special section 3(5)(a) procedure to his client, it must I think rest upon a legitimate expectation that Her Majesty's Government would abide by its undertaking to the European Commission on Human Rights. Mr Pannick does not dispute that a departure from the undertaking would be reviewable at the instance of the person affected, but he submits that the applicant is outwith the terms of the undertaking. These terms are to be collected, I think, not only from the judgment of the court that has been put before me, but perhaps more directly from the written observations submitted to the Commission by Her Majesty's Government and containing the relevant assurance. I have the text of it and I will set it out: "3.5 The Government would like to take the opportunity presented by the Commission's request to submit observations in this case to explain how they intend to deal in the future with asylum applications from persons who, like the applicant, have leave to remain in the United Kingdom which has expired. If an application for asylum were made then the Government would, as at present, consider the application very carefully. If the application were refused the Government would, as at present, serve a notice of intention to deport on the ground that the applicant was an overstayer, under section 3(5)(a) of the 1971 Act, thus attracting a right of appeal under section 15 of the Act. In the course of such an appeal the applicant could make representations to the appellate authorities concerning his claim to be a refugee. The Government would, save in exceptional circumstances, be prepared to proceed on this basis so as to attract these appeal rights even in cases where the applicant had been convicted of overstaying and recommended for deportation, provided the application for asylum was made before the deportation order was actually made. By these administrative measures the Government would ensure in such cases that no overstayer who claimed asylum would be removed without a chance of having a decision to refuse asylum reviewed by an independent tribunal. The Government do not, however, consider it appropriate to proceed on that basis in cases where a person has been convicted and recommended for deportation and where the application for asylum is made only after the deportation order has been made and the person is liable to be removed at any time. In these circumstances, given the available opportunities to seek asylum, with the right of appeal, before the making of the deportation order, and given that any application for asylum must always be considered very carefully even if made on more than one occasion, the Government consider that in the interests of finality that it is reasonable, if the application is refused, that the person be removed from the United Kingdom in pursuance of the deportation order without a further avenue of appeal being open to him." It can be seen that the reason given for limiting the procedure in terms to cases where the application for asylum has predated the making of the deportation order, is that by the time the Secretary of State comes to consider the deportation order the applicant will have had plenty of time to apply for asylum if so desired. This is based in the Government's statement upon the need for finality. In court today Mr Pannick advances, in addition to a rehearsal of that reason, a somewhat clearer reason, namely that the Secretary of State cannot decide whether to sign a deportation order or not on the basis of an application for asylum that has not yet been made. Mr Scannell responds to both of these arguments that what the undertaking is based on is not the Secretary of State's state of knowledge but the applicant's state of mind. That is to say, says Mr Scannell, the purpose of the cut-off is to stop an applicant simply reacting to a deportation order by an asylum claim and thereby attracting the appellate provisions under section 3(5)(a) and section 15. It follows, Mr Scannell submits, that if an applicant does not yet know of the existence of a deportation order, notwithstanding one has been signed, he is within the undertaking, or at least within its intent, where he claims asylum. Mr Scannell also points out that Mr Pannick's principal justification of the undertaking the one that echoes the Government's, touches in fact upon the applicant's state of mind because it impinges on questions of the genuineness of the asylum application. I say at once that, if I could, I would find a way of spelling such a purpose as Mr Scannell contends for out of the terms of the undertaking. The terms themselves are, however, quite clear and I repeat the proviso which they contain: ". . . provided the application for asylum was made before the deportation order was actually made." If I felt able to do so I would be prepared to hold either that the applicant is within the scope of the undertaking, or, since on its very words that appears to me to be quite impossible, I would adopt Mr Scannell's alternative approach and, if I could, hold that the Secretary of State could arguably be acting unreasonably in not applying the benefit of the undertaking to the applicant, given the facts of the applicant's case and the purpose of the undertaking. Mr Scannell, seeing the problem, seeks to meet it by approaching it from the opposite end in point of time. He submits that once an asylum claim is made, albeit it is made after the deportation order has been signed, the Secretary of State is, in accordance with his undertaking, effectively duty bound to revoke the deportation order in order to follow the procedure which the Government has promised to the European Commission it will follow in such cases. In order to make this submission, however, Mr Scannell has had to include in it an exception for cases where the applicant knew of the deportation order before making his application for asylum. In my judgment the exception destroys the submission. It would have the effect of limiting revocation pursuant to this argument to those cases where, as here the applicant applies for asylum in ignorance of the deportation order against him. In other words, the submission is the state of mind argument recycled and is not a discrete submission. For the reasons that I have given, I regret that it does not seem to me to be arguable that the applicant's state of mind is an overriding test of or ground for the undertaking given. The undertaking is clear in its terms and it would take something at least as clear to subvert or enlarge the terms in which the undertaking is couched. As to Mr Scannell's two alternative grounds, which go to the exercise of the power to revoke the deportation order, the very full correspondence deals with the several matters which have been expertly canvassed by the applicant's solicitors, save only for the refusal to apply the undertaking in the present case. This refusal is, as today's argument has demonstrated, a freestanding fact. It is susceptible to challenge in a proper case by way of judicial review, but in my judgment, despite Mr Scannell's excellent argument, the facts of this case do not bring the applicant arguably within the terms of the undertaking given by Her Majesty's Government to the European Commission, nor -- and this is perhaps more central to the argument within any demonstrable purpose implicit in, although not spelt out in, the undertaking. Accordingly, with real regret because of the imminence of the introduction of proper statutory appeal procedures, I have to refuse this application.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London, EC1; Treasury Solicitor

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