R v. Special Adjudicator, Ex parte Kandasamy

R v SPECIAL ADJUDICATOR ex parte KANDASAMY

Queen's Bench Division

[1994] Imm AR 333

Hearing Date: 22 February 1994

22 February 1994

Index Terms:

Political asylum -- Secretary of State had certified application in his opinion to be without foundation -- proposed returning applicant to Sweden -- the meaning of "had an opportunity" in paragraph 180K of the rules -- whether applicant had had to have the knowledge he could apply for asylum in Sweden -- whether adjudicator's approach to evaluating the Secretary of State's certificate was correct -- whether in treating the applicant's case differently from that of another applicant with whom the applicant had travelled the Secretary of State had acted unfairly. Asylum and Immigration Appeals Act 1993 sch 2 para 5(1); HC 251 para 180K.

Held:

Judicial review of Secretary of State's refusal to consider on the merits, an application for political asylum and subsequent dismissal by adjudicator of "without foundation" appeal. The applicant was a citizen of Sri Lanka who had intended to seek political asylum in Canada. Under the guidance of an agent he flew to Sweden: a day later with other Sri Lankans he flew to Heathrow, intending to fly to Canada. He and the others were detained at Heathrow. They all claimed asylum. The Secretary of State concluded that the applicant could be returned to Sweden, where, in terms of paragraph 180K of HC 251 he had had the opportunity to claim asylum. An appeal was dismissed by a special adjudicator. Counsel argued that the words "had the opportunity . . . at the border or within the territory of a third country, to make contact with that country's authorities to seek their protection", in paragraph 180K of HC 251 required an applicant to have the knowledge that he could apply for asylum in that country. Counsel submitted that the special adjudicator had adopted the wrong approach to the evaluation of the Secretary of State's certificate, not having independently assessed it, and not giving adequate reasons for upholding it. One of those with whom the applicant had travelled, had left the United Kingdom and gone to Ireland, intending there to fly to Canada. He had been returned by the Irish authorities to the United Kingdom. The Secretary of State had then decided to consider that applicant's case on the merits. Counsel argued that in that regard the Secretary of State had drawn an unfair distinction between the two cases, and the other traveller had in fact benefitted from his delict. Held 1. The concept of 'opportunity" in paragraph 180K of HC 251 did not include an element of knowledge. It was sufficient that the applicant knew that he was no longer in the country where allegedly he feared persecution. The approach laid down in Dursun and Musa was still good in law, albeit those cases had been decided before the coming into force of the 1993 Act and the new immigration rules. 2. It was not necessary to devise a legal test, but if it were then that advanced by the respondent would be acceptable: "a person has an opportunity to apply for asylum if he is aware that he is outside the country in which he fears persecution, he is physically able directly or indirectly to contact the authorities of the state in which he finds himself and there is no reason to believe those authorities would not receive an application". 3. The reasons given by the special adjudicator were adequate. 4. The special adjudicator had approached the assessment of the Secretary of State's certificate correctly, following Mehari. No evidence was before him to suggest that Sweden would not accept the applicant and consider his claim. 5. On the facts, there had been no unfairness or lack of proper consistency in the Secretary of State's different approach to the applicant's case and that of his fellow-traveller. There was no principle in public law that different persons had to be treated in the same way.

Cases referred to in the Judgment:

R v Cugullere [1961] 1 WLR 858: [1961] 2 All ER 343. R v Boyesen [1982] AC 768: [1982] 2 All ER 161. R v Inland Revenue Commissioners ex parte Preston [1985] 1 AC 835: [1985] 2 All ER 327. Secretary of State for the Home Department v Abu Naim Mowla [1991] Imm AR 210. R v Immigration Appeal Tribunal ex parte Amin [1992] Imm AR 369. R v Inland Revenue Commissioners ex parte Mead [1993] 1 All ER 772. R v Secretary of State for the Home Department ex parte Dursun [1993] Imm AR 169. R v Secretary of State for the Home Department ex parte Musa [1993] Imm AR 210. R v Secretary of State for the Home Department ex parte Erdogan (unreported, QBD, 16 December 1993). R v Secretary of State for the Home Department ex parte Mehari and ors [1994] Imm AR 151.

Counsel:

I Lewis for the applicant; R Singh for the respondent PANEL: Hidden J

Judgment One:

HIDDEN J: In this application for judicial review, the decision sought to be impugned is that of the special adjudicator on 23 November 1993 in dismissing the applicant's appeal against a decision of the immigration officer at Heathrow dated 1 September 1993, refusing the applicant leave to enter the United Kingdom. Leave was granted by Clarke J on 31 December 1993. The relief sought is an order for certiorari to quash the said decision and an order of mandamus to require a different immigration special adjudicator to determine the applicant's appeal in accordance with law. The factual background is short. The applicant is Sri Lankan, of Tamil origin, and left Sri Lanka on 25 August 1993 with the intention of flying to Canada to claim political asylum. He feared persecution in his home country and had made arrangements for travel to Canada through an agent who procured travel documents and tickets and planned the route and accompanied the applicant at least as far as London. He arrived in Sweden, and after a night and a day, having gone through immigration twice in Sweden, he subsequently boarded a flight from Gothenberg airport to Heathrow airport. On 27 August 1993 at Heathrow airport the applicant was intending to transfer to a flight to Canada, but he was detained whilst waiting to board that flight when airline staff became suspicious. Two other passengers were detained with him on that intended outward flight, one of them called Subermanian. They had travelled on the same flight from Gothenberg with the assistance of the same agent but had not come with the applicant from Sri Lanka. The three passengers, including the applicant, once detained by immigration officers at Heathrow, applied for asylum in the United Kingdom. What the applicant said, when interviewed in relation to his application as to why asylum was not claimed in Sweden, was that he did not know which country it was, the agent did not let him speak to anyone and he did not know whether that country would accept refugees or not. After considering the interview, the Secretary of State issued a certificate pursuant to paragraph 5(1) of schedule 2 of the Asylum and Immigration Appeals Act 1993. That certificate was dated 30 August 1993, to the effect that the application for asylum was without foundation. It was on the basis that the applicant could be returned to Sweden and, accordingly, the substantive aspects of the applicant's claim and the other two passengers' claims had not been considered. On 1 September 1993 the immigration officer at Heathrow airport served the applicant with a notice of refusal of leave to enter. A similar situation pertained with the other two passengers, and all three lodged appeals. Mr Subermanian's position became different pending the hearing of the appeal, in that he attempted to travel to Canada via Ireland and was detained in Ireland and returned to the United Kingdom thereafter. His position continued to be different, in that the Home Office decided to consider his claim for asylum substantively and revoked the decision based on the "third country" principle of return to Sweden. Complaints as to inconsistency are argued by Mr Lewis for this applicant. There was various correspondence between the applicant's solicitors and the Swedish authorities, which is referred to in the decision of the adjudicator. The applicant's appeal, was heard on 16 November 1993 by the adjudicator, who adjourned the hearing to 23 November 1993 when his determination was given. The appeal was refused. It is the decision of the adjudicator that Mr Lewis challenges on three basic areas of challenge. He says that the adjudicator's approach can be faulted in relation, firstly, to the adjudicator's approach to the opportunity of the applicant to apply for asylum in Sweden, secondly to his assessment of the merits of the Secretary of State's certificate and, thirdly, in a flawed approach to the concept of consistency in this case. Mr Lewis takes me to paragraph 180K of HC 251, the statement of changes in immigration rules, which reads: "If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless: (a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection" -- it is the words "has had an opportunity" to which Mr Lewis draws attention -- "or (b) there is other clear evidence of his admissibility to a third country. Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant." In his Form 86A, Mr Lewis sets out various well-known authorities in relation to the approach of the courts to these questions. His first challenge to the adjudicator's approach relies upon his submissions on the words "has had an opportunity" in paragraph 180K(a) of HC 251. Mr Lewis says that, for there to be an opportunity, there is a requirement of knowledge, and if there is merely an opportunity without knowledge, that does not amount to an opportunity. He relies on two authorities in support of his submission: first, R v Cugullere [1961] 2 All ER 343 and, second, R v Boyesen [1982] 2 All ER 161. Both of those cases, it seems to me, relate solely to concepts of the criminal law in relation to the necessity for there to be knowledge accompanying physical possession, in the case of Cugullere a weapon, and in Boyesen a drug. Mr Lewis seeks to use them to import into the material words a test as to whether the applicant knew of the relevant circumstances or had no doubt of the relevant circumstances, where the relevant circumstances are that the application for asylum would be properly considered by the authorities in that country. Mr Lewis argues that opportunity required knowledge of the opportunity to make an approach to the Swedish authorities on the basis of asylum, and that the essential prerequisite of knowledge was that the applicant should know where he was. He points to the evidence given by the applicant that he did not know where he was. Looking at the words in their simple ordinary meeting, I am satisfied that opportunity cannot be taken to include the element of knowledge for which Mr Lewis seeks. He seeks for there to be knowledge that the applicant was in a particular country so that the applicant could then consider the position as to whether or not an application for asylum would be dealt with favourably. In my judgment, there is not that element of knowledge to be imported into the concept of opportunity. It is clear that the evidence before the adjudicator showed conclusively that the applicant knew he was no longer in Sri Lanka but was in another country. I cannot find that the words "has had an opportunity" can be strained to bear the meaning for which Mr Lewis contends. I am quite satisfied that the adjudicator did approach the problem he had to decide construing the words properly, and did come to findings of fact to which he was entitled to come. He said at page 8 of his determination: "While it is possible that he may not have known that the country in which he changed planes was in fact Sweden, I am in little doubt that he was well aware that he was no longer in Sri Lanka by that time. The different language being spoken at the airport must have established this. If the words 'Sri Lanka -- Tamil' were sufficient to draw him to the attention of the relative authorities at London airport, they would surely have achieved the same effect in Sweden had he chosen to use them. He was nobody's prisoner; the man he describes as his 'agent' was somebody he himself was paying to get him clandestinely from Sri Lanka to Canada. I find as a fact that he did have adequate opportunity to seek asylum in Sweden had he chosen to do so." That is a conclusion to which I would have come independent of authority, but Mr Singh draws my attention to R v Secretary of State for the Home Department ex parte Dursun [1993] Imm AR 169 where the Master of the Rolls, dealing with a similar argument, said this: "Then finally (I think it is the final point) it is said that really Mr Dursun had no chance of making an application in Belgium. With the greatest respect, that is nonsense. Of course he had every chance of making an application for political asylum at the port at which he embarked for Dover. He may not have spoken French, but a large number of people there speak English. He had every opportunity, or at any rate there is no evidence that he had not. A bare assertion that he could not is singularly unconvincing." I was also taken to the case of Musa [1993] Imm AR 210, where Otton J, dealing with a situation not dissimilar to that before me, said at page 212: "Therefore, it seems to me that this case falls fairly and squarely within the policy, and the Secretary of State acted in accordance with law in exercising his discretion by invoking the policy and deciding to return these applicants to Germany. On the evidence that was before him, and indeed before this court, there was clearly an opportunity for the applicants either individually or through their accompanying agent, who is mentioned in the affidavit, to make such an application on arrival in Frankfurt." Mr Lewis makes an attempt to distinguish those cases on the ground of the dates of their decision, being before the change in substantive law which has followed them, but I am not persuaded that there is a real distinction here. My attention was also invited to the unreported cases of R v A Special Adjudicator ex parte Erdogan decided by May J on 16 December 1993. I have indicated that I am satisfied that, in the case of the words "has had an opportunity", the approach of the adjudicator in law was correct and his approach in relation to findings of fact was also on the correct basis. Mr Singh suggests that if a legal test is needed for the meaning of "opportunity" in this context, a person has an opportunity to apply for asylum if he is aware that he is outside the country in which he fears persecution, he is physically able, directly or indirectly, to contact the authorities of the State in which he finds himself, and there is no reason to believe that those authorities would not receive an application. I am not satisfied that there is a necessity for a legal test, in view of the clear meaning of the words, but the test projected by Mr Singh is an acceptable one. In parallel with those submissions, the adjudicator's findings of fact are attacked by Mr Lewis on the basis of lack of clarity in the giving of reasons. Mr Lewis relies on R v Immigration Appeal Tribunal ex parte Amin [1992] Imm AR 369, 374, where Schiemann J set out his conclusion that adjudicators should indicate with some clarity in their decisions what evidence they accept, what evidence they reject, whether there is any evidence as to which they cannot make up their minds and whether or not they accept it, and, finally, what, if any, evidence they regard as irrelevant. Accepting, as I do, the submission of law put forward by Mr Lewis, I consider that the passage from the adjudicator's determination at page 8, which I have already read, sets out clearly the reasons which led the adjudicator to conclude that the applicant had adequate opportunity to seek asylum in Sweden. Mr Lewis's second challenge is as to the adjudicator's approach to the assessment of the certificate. Mr Lewis cites Laws J's statement in R v Secretary of State for the Home Department ex parte Mehari and ors (8 October 1993), that the discipline which this system imposes upon the Secretary of State consists in the fact that the adjudicator must independently judge the merits of the certificate. Mr Lewis submits that the adjudicator has misinterpreted that passage, in that he has regarded the certificate of the Secretary of State as if it were binding in law and has effectively rubber-stamped the certificate without applying his mind to it, and so has fallen into error of law. Alternatively, he submits that the adjudicator's findings in his judgment do not include a statement of clear findings in relation to the communications adduced, which were put forward by Mr Lewis as being contrary to the statements of the Secretary of State. I cannot find that to be so. The adjudicator said: "It was held in Mehari that the provisions of paragraph 180K of HC 725 are sufficient to satisfy the UK's obligations under the Convention. The onus is on the Secretary of State to satisfy me on the balance of probabilities that the provisions of that paragraph are met, but that onus will be discharged by the statement in the Secretary of State's letters of refusal in the absence of any material before me to indicate that Sweden might not fulfil her Convention obligations. No such material has been placed before me, and I therefore find that Sweden is indeed a safe country within the definition contained in paragraph 180K." That finding is a clear finding that the onus remains on the Secretary of State, but that if no material is put before the adjudicator to indicate that Sweden might not fulfil her Convention obligations, then the Secretary of State discharges that onus. The adjudicator was making a clear finding that no such material had been placed before him. Earlier in his determination, he had referred to correspondence relied upon by Mr Lewis as suggesting that the burden had not been discharged by the Secretary of State, in that that correspondence raised doubts as to the way in which Sweden would treat the applicant's case if he were returned. I need not set out the full paragraph, but it is clear to me that the adjudicator had considered all the submissions of Mr Lewis and all that had passed between the applicant's solicitors and the Swedish authorities. None of it goes in any way to suggest for a moment that Sweden might not fulfil her Convention obligations. It is clear that that was the adjudicator's view from the way in which he said: ". . . in the absence of any material before me to indicate that Sweden might not fulfil her Convention obligations. No such material has been placed before me . . ." The reasons are clearly given, and it is clear that the Secretary of State's approach was consistent with that recommended by the court by Laws J in Mehari. It follows that those submissions of Mr Lewis fail. The final ground to which Mr Lewis moves is the question of inconsistency. There, he draws parallels between the way in which the Secretary of State has considered the case of Mr Subermanian and the way he has considered the case of the applicant. He drew attention to the fact that the mere fact that Mr Subermanian had travelled to Ireland did not prevent him eventually being returned to Sweden and complained that Mr Subermanian was benefiting from the misbehaviour involved in taking that trip. He said that the finding that there was no inconsistency was irrational or, alternatively, was flawed for a failure to give reasons. He took me to the case of Mowla [1991] Imm AR 210, and in particular a passage at page 225 where Glidewell LJ said: "I also observe that in my view it clearly is desirable that so far as possible decisions made on the same facts about an applicant for entry or for leave to remain for an extended period should be consistent with each other. If it can be shown that an immigration officer on facts which in no material way differ from those which were before the Home Office when it was decided to grant the applicant leave to remain for a limited period has reached a different conclusion and has refused leave to enter, then it may well be that the later decision could be challenged in the High Court, either on the ground of irrationality or, I think more probably as Mr Collins suggested, on the grounds of procedural unfairness: see IRC v Preston [1985] AC 835 . . ." Mr Lewis conceded that the words of Glidewell LJ referred only to a consistency in relation to an application for entry, consistency or inconsistency about one and the same person. He took me to IRC v Preston [1985] 1 AC 835, 866 and in citing from the speech of Lord Templeman he sought to persuade me that the words referring to the HTV case and the unfairness related to inconsistency and unfairness between different parties. After we had gone further into the matter, it was clear that that proposition could not be supported by the citation that he put before me. Mr Singh's argument on inconsistency was that the applicant's argument in this case, as put forward by Mr Lewis, was not actually based at all on procedure and that it was not a question of procedural fairness or unfairness. It was really a question of substantive law. He took me to page 865 in IRC v Preston. Mr Singh developed his argument by reference to the case of R v Inland Revenue Commissioners ex parte Mead [1993] 1 All ER 772, and in particular to the words of Stuart-Smith LJ at p 783: "Nevertheless, while not challenging the validity of the policy, Mr Beloff submits that there must be grafted on to it a requirement to treat all dishonest taxpayers guilty of similar offences in like manner. Either all must be prosecuted or none. I reject this submission for two reasons. First, it is inconsistent with a policy and cannot be operated consistently with it. You cannot be both selective and treat every case alike. Second, it seems to me to be quite impracticable. How are the Revenue to decide what cases are alike? What is to be the basis of the group of cases that has to be considered? Over what period of time are the group to be considered? Are all cases involving forgery to be in one group?" Further questions are listed, and then Stuart-Smith LJ said: "These questions only have to be posed to demonstrate that it is quite impossible to answer and certainly, in my judgment, Mr Beloff was quite unable to proffer any convincing answer." Mr Singh summarised Mr Lewis's argument as being that consistency in public law required different people to be treated in the same way and said that there was no such principle in public law. The requirement occurred only where there was a question of unfairness. He put the proposition that it was lawful for a public body to have selection as a policy and that any legal principle of consistency would raise all sorts of questions of the sort raised in Mead. He submitted that the distinction here between procedure and substance was crucial, otherwise there was a risk that the court's supervisory jurisdiction would be invoked as if it were an appellate one going to the merits of the decision. What had to be dealt with here was a question of the Secretary of State's discretion, and it was the essence of discretion that people who feel they should be treated in the same way may be treated differently. Mr Singh submitted that consistency as such is not a principle of administrative law; the governing principle is whether there has been unfairness such as to amount to an abuse of power. In my judgment, Mr Singh's argument is correct. There is here no principle of inconsistency on which the applicant can rely in any event. Mr Lewis seeks to approach the matter by dealing with findings of fact. He seeks to say that the adjudicator's findings were either perverse or, alternatively, were flawed. He says that they were perverse, in that the circumstances of Mr Subermanian and the applicant were identical or, alternatively, they were flawed because the adjudicator failed adequately to explain why they were different. I look at the passage in the adjudicator's determination: He there said: "Dealing first with the allegation of procedural unfairness contained in inconsistency between the approach taken to these appellants and that taken to Mr Subermanian, their alleged travelling companion, I find that this is answered by the telephone call from the Immigration Service elaborating on the latter's letter of 20 September 1993 to Messrs Sriharans. What emerges is that although Mr Subermanian arrived in the United Kingdom, he subsequently left this country to go to Ireland and was caught when trying to board a plane to the USA. The two instant appellants, however, had not left the United Kingdom, so that their cases fell to be considered differently. I find no inconsistency, still less procedural unfairness, in this." It follows from what I have said that there was no inconsistency of treatment here in any event. The adjudicator drew out the factual distinction which had made the difference to the Secretary of State's decision. There is no suggestion of any bad faith or malice in making that distinction, and I find that this ground too fails. It follows that nothing has been shown in the decision of the adjudicator amounting to any illegality, irrationality or procedural impropriety. It follows that this application must therefore fail, and I dismiss it.

DISPOSITION:

Application dismissed

SOLICITORS:

Mathis, London SE1; Treasury Solicitor