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


Queen's Bench Division

[1994] Imm AR 204

Hearing Date: 22 November 1993

22 November 1993

Index Terms:

Political asylum -- refusal -- certificate by Secretary of State that claim was without foundation -- special adjudicator did not agree -- undertaking by Secretary of State's representative before adjudicator that if appeal allowed Secretary of State would consider the application on the merits -- subsequent clarification of the law -- successful appeal to Tribunal by Secretary of State -- whether failure to reconsider the appeal on the merits a breach of the undertaking -- whether applicant had legitimate expectation that the case would be reconsidered -- whether contempt of court. Asylum and Immigration Appeals Act 1993 s 8, sch 2 para 5: HC 251 para 180K.


The applicant for leave to move for judicial review was a citizen of Croatia. Her application for asylum had been refused by the Secretary of State. On her appeal to a special adjudicator the Secretary of State certified that in his opinion the claim was without foundation: he had concluded that the applicant could be removed to a third safe country. The adjudicator was not satisfied that if she were so removed, she would not be returned to the United Kingdom. In the light of the law as it was then understood, he allowed the appeal. The representative of the Secretary of State, when asked, undertook that if the appeal were allowed, the Secretary of State would consider the application on the merits. However, shortly after the determination by the special adjudicator, the law was clarified by a judgment in the High Court: that a person removed to a safe third country might be returned to the United Kingdom was not a factor to be taken into account by a special adjudicator in determining a "without foundation" appeal. In the light of that judgment, instead of considering the application on its merits, the Secretary of State appealed to the Tribunal. His appeal was allowed. Counsel for the applicant, in seeking judicial review, submitted that the applicant, in the light of the undertaking by the Secretary of State's representative before the adjudicator, had had a legitimate expectation that the application for asylum would be considered on the merits: he further submitted that the attempt to remove the applicant following the appeal was a contempt of court. Held 1. In the events which had happened no legitimate expectation arose that the application would be considered on the merits: the undertaking was conditional upon the special adjudicator allowing the appeal. Once there had been a successful appeal before the Tribunal, there was no basis for reviewing the case. 2. There was no basis for asserting that the removal of the applicant was a contempt of court.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Senay Mehari and ors [1994] Imm AR 151. Secretary of State for the Home Department v Biljana Sop (unreported) (10356).


D O'Dempsey for the applicant; Miss D Rose for the respondent PANEL: Macpherson J

Judgment One:

MACPHERSON J: Mr Declan O'Dempsey makes a valiant attempt here to obtain leave to bring proceedings for judicial review on behalf of his client, Biljana Sop. The order which he seeks to quash is that refusing asylum in this case. When I say refusing asylum, the position is simply this. The applicant is a citizen of Croatia. She was refused leave to enter the United Kingdom on 18 August 1993. She appealed against that decision under very recent legislation, namely section 8(1) of the Asylum and Immigration Appeals Act 1993. The Secretary of State had indicated that this was a "third country" case and that the lady would be sent back to Germany whence she immediately had come. What happened was that the appeal then went to the adjudicator. The adjudicator's decision is before me. As the matter came towards its close and after most of the argument was finished, he appears to have asked the parties' representatives what would happen if he were to allow the appeal and "what further step or direction it was expected that I should take" (that is to say the adjudicator should take). He was told, as he says in his findings, that Miss Bhundia and Mr Baster who were the advocates were quite content that he should take no further action at all and give no further direction. I quote again from the conclusions: ". . . that was on the basis that Miss Bhundia undertook on behalf of the Secretary of State to consider the appellant's claim [for asylum] substantively." There was apparently a senior official of the Home Office present. That was checked with him or her and that was what was intended to be done. That was of course entirely on the basis that the appeal at that stage had succeeded and the adjudicator had overruled the original decision which had been made in this case. What happened then totally altered the situation because there was an appeal lodged to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal allowed the appeal. They indicated what the grounds for that were, and I read from the conclusion on page 4: "The Deputy Chief Adjudicator when he determined this appeal had no guidance from the superior courts on which he could rely for the resolution of the issues before him. On 8 October however Laws J delivered judgment in Mehari and ors. The revised judgment is not yet available but both representatives were familiar with the case and were content to rely on the draft judgment of which they had copies. Miss Asad acknowledged that on her understanding of the judgment, the immigration officer's appeal was bound to succeed." Therefore the appeal was allowed and the adjudicator's decision was over-ruled. In those circumstances we are back to square one so to speak. This is a case in which there is a third country to which this lady can go. The present position is that that is where she will go in accordance with those decisions to which I have referred. However, a case is launched (what I might call a Mr Scannell special) with several grounds upon which it is alleged that leave should be granted, including the suggestion that there has been contempt of court and that there has been a legitimate expectation raised. The contempt is based upon a suggestion that there has been a breach of an undertaking given to the court, namely to the adjudicator, and that the step which is being taken now to remove this lady is a contempt. Mr O'Dempsey puts the matter the other way around. He starts off with the second part of the suggested framework of the application and submits that there is a legitimate expectation based upon what was said before the adjudicator that the matter would be reconsidered, full stop. In other words he says that the undertaking was not expressed to be conditional. It was unconditional and that is the end of the matter. The appeal to the Immigration Appeal Tribunal takes the matter no further. The applicant was not in fact represented before the Tribunal as I understand it. Any argument there once Mehari had been decided would have been fruitless. I am not persuaded by any means that there is any arguable case as to legitimate expectation. Mr O'Dempsey has said all he can on that aspect of the case but I am unpersuaded. Furthermore, and this was very much the second limb of Mr O'Dempsey's argument of the case, I am not at all satisfied that there is a basis for an allegation that there has been a contempt in this case. All that was said was that in the light of the appeal being allowed, rather than take any other step which might be open the matter would be looked at afresh. That was a sensible follow-up of the finding of the adjudicator. Once the adjudicator's decision was swept away there is no basis at all for any consideration of the case afresh unless the Secretary of State wishes to do so totally independently of anything that has been said. I feel that there is no arguable case to go further. I have taken into account, although I did not have it initially, the affidavit of Stephanie Ridley, who is employed in the Treasury Solicitor's Department. She indicates that there was no undertaking given in the terms suggested but simply an undertaking on behalf of the Home Office to reconsider the applicant's case should the special adjudicator allow the appeal. That is an echo of what I have already said, namely that if that situation stood and was maintained the matter would be reconsidered. But once an appeal was launched against it, that was an end of any undertaking or indication (which is exactly what it was) as to what would happen should the adjudicator's conclusion be the final result. I fear that there is no arguable case in this instance. The removal date is tomorrow and that will take place. This application is dismissed.


Application dismissed


Jane Coker & Partners, London, N15; Treasury Solicitor

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