R v. Secretary of State for the Home Department, Ex parte Jahangeer and Others

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte JAHANGEER and others

Queen's Bench Division

[1993] Imm AR 564

Hearing Date: 11 June 1993

11 June 1993

Index Terms:

Political asylum -- arrival by applicant from safe country -- ministerial policy of returning applicant to that safe country -- whether policy contrary to the Convention on refugees -- the meaning of "refugees". Immigration Act 1971 s 3(2): HC 251 para 21: United Nations Convention relating to the status of refugees 1951, Protocol 1967 arts 1, 16, 31, 32; Dublin Convention 1990 arts 2, 3(5).

Held:

The applicants for leave to move for judicial review were citizens of Afghanistan who had claimed political asylum on arrival in the United Kingdom. They had come from Germany. In accordance with his stated policy, the Secretary of State declined to consider their applications on the merits and proposed to return them to Germany, the safe country whence they had come. Counsel for the applicants argued that the ministerial policy was contrary to the provisions of the 1951 Convention. He submitted that the meaning of "refugee" wherever used in the Convention was that given to it in the Convention's definition clause. It followed that it was contrary to article 32 of the Convention for the Secretary of State to remove the applicants, who were undoubtedly refugees, albeit their status had not yet been determined by the Secretary of State. Held 1. The term "refugee" in the 1951 Convention and according to the context, was used both of those whose status as refugees had been determined and those seeking refugee status. 2. Only those whose status as refugees had been determined came within the protection of article 32 of the 1951 Convention. 3. The Dublin Convention, on which the ministerial policy was based, was not by its signatories seen as inconsistent with the 1951 Convention. 4. It followed that the ministerial policy was not inconsistent with the 1951 Convention. 5. Even if it were, the practice of returning to the first safe country they had reached, persons seeking refugee status in the United Kingdom, had been well-established when Parliament approved the relevant immigration rules: his policy could not be said to be unlawful.

Counsel:

D O'Dempsey for the applicants; R Tam for the respondent. PANEL: Jowitt J

Judgment One:

JOWITT J: There are before the court three applications for leave to move the court for judicial review of a decision not to consider substantively the application of any of the three applicants for political asylum but to remove them to a safe third country, namely Germany. The applicants are the mother, her son and her niece. They came to this country from Afghanistan, but not directly for they were for a while in Germany where they had leave to stay, leave which, I think, has not expired. It has a few days to run. It is because they have come here from Germany that the Minister in pursuance of his policy has decided that their cases should not be considered substantively but should be returned to Germany. Mr O'Dempsey raises two challenges. The second of his challenges is not the one in the forefront of his helpful submissions, but I deal with it first and that is that the Minister, having regard to the concession he made, which is to be found at page 602 of the Immigration Appeal Reports 1992, ought not to be removing the applicants to Germany but ought himself to be considering their applications substantively. These cases cannot be brought within any of the particular examples given in the Ministerial Statement, but what Mr O'Dempsey says is that the cases of each of them fall within the spirit of the concession. It is not for me to remake the Minister's decision. I can only give leave on that basis of attack if it seems to me that there are arguable grounds for saying that the Minister has either misled himself, taking account of that which he should not have taken account of, or not giving proper weight to matters before him, or that his decision was Wednesbury unreasonable. It does not seem to me that there is any arguable basis upon which his decision can be attacked. I therefore turn to the first of Mr O'Dempsey's submissions which is simply a matter of law. What he says is that the ministerial practice of refusing to consider substantively the applications for asylum of those who come from a safe third country and instead, of returning them to that country is contrary to the Geneva Convention dealing with asylum and to rule 21 of the immigration rules. Mr O'Dempsey accepts that the Convention is not part of our domestic law. It can therefore only be invoked in so far as ministerial practice has shown that the Convention will be recognised and enforced by the immigration authorities in this country. Reliance is therefore placed upon rule 21 of the current immigration rules which were put before the House of Commons on 1 May 1990. It reads: "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments." Mr O'Dempsey draws my attention first to the definition article, article 1, in which refugees are defined. What he submits is that wherever one sees the word "refugee" in the subsequent parts of the Geneva Convention the word is used with the meaning given to it by article 1. He therefore submits, if one turns to article 32, paragraph 1, which reads: "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order." -- that these applicants are indeed refugees, albeit their status as such has not yet been determined by the Minister, and therefore they cannot be removed from this country because there is no suggested basis for removing them on grounds of national security or public order. In my view though, the term "refugee" is not used with the same meaning wherever it appears in the Convention. It is used, I think, in some cases to refer to an aspirant refugee whose status has not yet been determined and who may, or may not, be shown on investigation to be a refugee; and in other cases to someone who is already established to be a refugee. There may be uses of the term applying to both the aspiring and the recognised refugee. If one turns, for example, to article 16, paragraph 1 provides: "A refugee shall have free access to the courts of law on the territory of all Contracting States." In my judgment, the use of the word "refugee" there is apt to include the aspirant, for were that not so, if in fact it had to be established that he did fall within the definition of "refugee" in article 1, he might find that he could have no right of audience before the court because the means of establishing his status would not be available to him so that he could not have access to the courts of this country on judicial review. This court is not in general a tribunal of fact and is not in a position to determine status. If one looks at article 31, paragraph 1, it reads: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." Paragraph 2 provides: "The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admissions into another country." That seems to me to be perfectly apt to apply to the aspirant refugee whose status as a refugee has still to be determined by the immigration authorities of the country to which he has come. Article 32, in my judgment, applies to the refugee whose status has already been established. That being the view I take, and the proper construction of article 32, paragraph 1, the reliance which Mr O'Dempsey places upon it fails. The reliance which he places on it is that since rule 21 of the immigration rules said that the Convention would be followed -- it does not say it in quite those words -- then no refugee could be returned to a safe third country. In fact -- and this no doubt is part of the problem giving rise to the legal argument I have heard -- the Geneva Convention does not contain a provision stating which country must consider refugee status. At the time of the laying of the immigration rules before the House of Commons on 1 May 1990 there was a practice of returning refugees -- that is those claiming a refugee status -- to a safe third country. That was the international practice as was made quite clear in the statement made by the Minister to the House of Commons on 25 July 1990. That is a practice followed by other Convention countries, the Convention I refer to there being the Geneva Convention and that, it seems to me, is an important consideration in relation to the construction of the Convention. Moreover, the European Community Member States have now agreed the text of the Dublin Convention. It is true that that Convention has not yet been ratified by any Member State, but it is there to be ratified in its present form should any Member State choose to ratify it before there is any amendment of the Convention. Paragraph 5 of article 3 of this Convention is of interest. The text of the Convention is to be found at page 604 of the Immigration Appeal Reports 1990. Article 3, paragraph 5 reads: "Any Member State shall retain the right, pursuant to national laws, to send an applicant for asylum to a third State, in compliance with the provisions of the Geneva Convention, as amended by the New York Protocol." What I think is significant about the Dublin Convention, despite the fact that it has not been ratified, is that the signatories to the Convention, themselves signatories to the Geneva Convention, have regarded the Dublin Convention as not being in any way inconsistent with the Geneva Convention. Indeed, article 2 of the Dublin Convention reaffirms the Geneva Convention. I do not, therefore, see any inconsistency between the practice of removals to a safe third country and the United Kingdom's treaty obligations under the Geneva Convention to which rule 21 of the immigration rules says full regard shall be given. Supposing though that I were wrong about that. The immigration rules are laid before Parliament under section 3(2) of the Immigration Act 1971. They are not a statutory instrument, as has been decided by the House of Lords, but they are the rules by which the Minister has chosen to bind himself and his officers. He and his officers will on occasion act outside the rules, but only to the advantage of the immigrant, or the would be immigrant, and not to his disadvantage. However, one cannot see the rules in isolation from their context and their context is that when the present immigration rules were laid before the House of Commons, there was already existing the international practice followed by this country of returning those seeking political asylum to a safe third country whence they had come to this country. It does not seem to me that the Minister can be criticised if there were to be any conflict between this practice and the Geneva Convention, since the Geneva Convention is not part of English law. If he were to say: "We will follow the Convention, but we will also continue this practice," then I am against Mr O'Dempsey's submission about the unlawfulness of the practice of removal to safe third countries. I reject his submission that the practice is inconsistent with this country's treaty obligations under the Geneva Convention, but were I to be wrong about that it seems to me it still could not be said that the practice is unlawful, or that the practice is one which the Minister should not follow. Indeed the practice has been recognised many times in this court and it has been recognised as well in the Court of Appeal. That therefore disposes of the point of law which was in the forefront of Mr O'Dempsey's submissions. I refuse leave in these three cases.

DISPOSITION:

Applications dismissed

SOLICITORS:

Fatima Thobani & Co, London NW6: Treasury Solicitor