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

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

Queen's Bench Division

[1994] Imm AR 35

Hearing Date: 6 July 1993

6 July 1993

Index Terms:

Political asylum -- Turkish Kurd -- refused political asylum in Switzerland -- travelled to United Kingdom on false passport -- applied for asylum on arrival -- fresh evidence in support of claim not available earlier to Swiss authorities -- claimed links with United Kingdom -- Secretary of State refused to consider case on the merits -- whether reasonable for Secretary of State to decide to return applicant to Switzerland for reconsideration of the case -- whether in the events which had happened the Secretary of State had an obligation to enquire into the asylum procedures followed by Switzerland.

Held:

The applicant for leave to move for judicial review was a Turkish Kurd who had been refused political asylum in Switzerland. He then travelled to the United Kingdom on forged papers and applied for asylum on arrival. The Secretary of State decided not to consider the case on its merits but to return the applicant to Switzerland. The applicant had two brothers in the United Kingdom, one of whom had been given refugee status. There was, it was said, further evidence available which had not been before the Swiss authorities when the applicant's application had been refused. Counsel argued that it was not reasonable, in the events which had happened, for the Secretary of State to return the applicant to Switzerland: he had moreover an obligation to enquire into the procedures adopted by Switzerland in the assessment of claims for asylum. For the Secretary of State it was argued that the case had been dealt with precisely in accordance with the Secretary of State's publicly announced policy. Held 1. The Secretary of State had dealt with the case in accordance with his policy. 2. Such further evidence as the applicant might be able to adduce in support of his claim should be put to the authorities in Switzerland. 3. The Secretary of State was clearly familiar with the procedures adopted by the Swiss authorities in assessing asylum applications and on the facts of this case had no obligation further to enquire into them. The position might be different where some other particular countries were concerned, but the Secretary of State was entitled to conclude that Switzerland would observe its obligations under the Convention.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250.

Counsel:

R Scannell for the applicant; I Ashford-Thom for the respondent PANEL: Brooke J

Judgment One:

BROOKE J: This is an application by Zeynel Abidan Avci for leave to apply for judicial review, in relation to a decision by the Secretary of State for the Home Department on 30 June 1993, in which he refused to consider the applicant's claim for asylum substantively in the United Kingdom, and gave directions for his removal to Switzeriand. The applicant is a Turkish Kurd. He claimed asylum in Switzerland in 1989 and was permitted to stay in Switzerland for three-and-a-half years while his claim was being processed. He told a case-worker for the applicant's solicitor, who has deposed on affirmation, that he had two interviews in Switzerland; the first was a short pro forma concerning his journey to Switzerland, and the second was a full political asylum interview. He says that he had no legal representation and was unable to give complete and detailed information concerning his claim, due to the absence of adequate legal advice, and that he did not understand his political asylum application would be of a confidential nature. He was eventually refused asylum in Switzerland in mid-April 1993, but he appealed against the decision. His appeal was refused one week later and he was served with removal directions set for 15 June 1993. In those circumstances he managed to obtain a false Greek passport, because he was otherwise faced with the immediate prospect of being returned to Turkey. He travelled to the United Kingdom under this false Greek passport, and arrived here on 27 June and applied for political asylum. He was interviewed on his arrival on 30 June, and following the interview he was served with a refusal notice which said, under paragraph 8.1(c) of schedule 2 of the Immigration Act 1971, that he was properly returnable to Switzerland, and that the immigration officer was satisfied on the information available that he would be re-admitted there: "moreover, Switzerland is a signatory of the 1951 Convention relating to the Status of Refugees and, on the basis of the information available to me about the policies and practices of Switzerland, and having considered the individual circumstances of your case, the Secretary of State is satisfied that the Swiss authorities will not return you to Turkey without first considering, in accordance with its obligations under the 1951 United Nations Convention, any application that you might make for asylum in that country." Mr Scannell has pointed out, that this was a standard notice: he referred to it as a pro forma notice. He has sought to distinguish this case from the cases to which he refers to as "third country" cases on the basis that the Swiss authorities have determined the asylum application and having refused it are determined to remove the applicant back to Turkey. It was in those circumstances that he came to this country and, if the Secretary of State continues with his proposed plans, he will soon after arriving in Switzerland be sent back to Turkey. He also says that the Secretary of State has not himself turned his mind to the substantive issue as to whether the applicant is entitled to protection under the Convention. Mr Scannell adds that there are two brothers and three cousins of the applicant in this country. One of the cousins has already been accepted as a refugee entitled to asylum, and I have been shown two statements by each of the brothers referring to matters which the applicant himself could not have known about when he was being interviewed by the Swiss authorities. This relates to an occasion in 1990 when the police in Turkey arrested each of his brothers and questioned them about their eldest brother Zeynel, the present applicant, whom the police were extremely anxious to interview. Mr Scannell has submitted that even though the Swiss authorities have considered the application for asylum and dismissed it, the Secretary of State is under a duty to satisfy himself as to the applicant's status and also to satisfy himself, as I understand it, that the applicant's application in Switzerland has conformed with the requirements of the Convention. Mr Scannell has set out his grounds for application, under what is called, 'legal framework', in his form 86A statement. He relies on the well-known authorities which refer to the care with which these asylum cases must be scrutinised, which have been handed down by the courts. Most notable is a dictum in R v Bugdaycay [1987] 1 AC 514, by Lord Bridge. He submits that this is a quite different case from a case in which the third country has not yet considered the application for asylum. Mr Ashford-Thom, for his part, submits that this is a case which falls fairly and squarely under the policy set out by the Secretary of State in the written answer in Hansard, on 25 July 1990, which the Court of Appeal has said, more than once, contain policies which the Secretary of State is entitled lawfully to follow, notwithstanding the fact that the Convention known as the Dublin Convention, has not yet been signed with some of the countries which are referred to in the statement. It appears to me, reading the Home Secretary's statement, that his conduct in handling this application does fall within the policy set out in the statement. It is in the first safe country reached that the asylum application should be considered, and if the asylum application is refused in that country, and the applicant unlawfully moves from a country under cover of a false passport to another country, that country has no obligation to consider the application afresh or to consider the lawfulness of the procedures in the first country. Of course, there are cases, as Mr Scannell pointed out to me, citing Kenya and Uganda, where it may be proper on the facts to look at the procedures in the second country but in this case there is evidence before me that the Secretary of State is familiar with the policies and practices of Switzerland. Mr Ashford-Thom submitted, in my judgment correctly, that if there is further evidence which is now available and which was not available to the applicant when he was interviewed by the Swiss authorities, he should bring that evidence to the attention of the Swiss authorities who would then be obliged under the Convention to consider it before determining whether to send him back to Turkey. Mr Scannell says that I should not speculate as to whether Switzerland would comply with its obligations under the Convention, but in my judgment, the Secretary of State is wholly entitled to assume that a third country such as Switzerland would comply with its obligations under the United Nations Convention. Accordingly, I dismiss this application.

DISPOSITION:

Application refused

SOLICITORS:

Simons, Muirhead & Burton, Treasury Solicitor