R v. Special Adjudicator, Ex parte Vibulan Srikantharajah



9 October 1995

Queen's Bench Division: Laws J

Political asylum-Sri Lankan-arrival in United Kingdom via Denmark and Germany-application for asylum characterised by Secretary of State as without foundation-Secretary of State proposed removing applicant to Germany-Germany would remove applicant to Denmark-whether Secretary of State entitled to rely on conclusion by German authorities that at Denmark was a safe country-whether Secretary, of State obliged to satisfy, himself that Denmark was a safe country. HC 395 para. 345.

The applicant for leave to move for judicial review was a citizen of Sri Lanka. He had applied for asylum in the United Kingdom after travelling from Denmark via Germany. The Secretary of State concluded that Germany was a safe country and proposed to return him there. He was aware that Germany would in turn return the applicant to Denmark, that being one of those countries which Germany considered safe: Germany would not consider asylum applications from person who arrived from Denmark.

Counsel argued that where the third country would automatically return an applicant to a fourth country, the Secretary of State could not properly conclude that the third country would satisfy its Convention obligations in so proceeding.


1. The Secretary of State had been entitled to conclude that the application was without foundation. He had concluded that Germany was a safe country and safe as regards the potential return of persons to Denmark and other countries considered by Germany to be safe.

2. The application was based purely on a theoretical possibility that circumstances might change in one of those countries before that country's procedures could be reconsidered by the German authorities.

M Murphy for the applicant

S Kovats for the respondent

Case referred to in the judgment:

Julia Martinas v Secretary of State for the Home Department [1995] Imm AR 190.

LAWS J: This is an application for leave to move for judicial review. It concerns the decision of a special adjudicator who on 25 September 1995 dismissed this applicant's appeal against the Secretary of State's refusal to accord him political asylum.

The applicant arrived in the United Kingdom on 12 August 1995. He is a Tamil from Sri Lanka. He applied at once for political asylum on 13 August, the following day. The Secretary of State refused to consider his claim substantively because he concluded that there was a safe third country to which the applicant could be returned, namely Germany. In fact, the applicant had travelled to the United Kingdom first via Denmark and then Germany. The Secretary of State gave a certificate under the Asylum and Immigration Appeals Act 1993 to the effect that the applicant's claim that his removal from the United Kingdom would be contrary to this country's obligations under the Geneva Convention was without foundation.

In the course of the hearing of the appeal before the adjudicator the legal position in Germany was canvassed, and I come at once to the submission made by Mr. Murphy, that there was material before the special adjudicator, as there is before me, to the effect that the law of Germany prohibits any right to political asylum to a person who has arrived in Germany from any one of certain countries which are listed, or as it might be, scheduled, in the relevant German legislative instrument. They include Denmark. The position therefore is, says Mr. Murphy, that if this applicant is returned to Germany, the German authorities will automatically and without further consideration return him to Denmark: they will therefore not merely decline to consider his substantive asylum claim but decline to give any individual consideration in his case to the question whether, in its turn, Denmark is a country that will comply with its Convention obligations.

The submission is thus to the effect that the Secretary of State could not properly have been satisfied that Germany would abide by its Convention obligations: the German rules merely deem that certain countries, to which an entrant may be automatically returned are safe third countries. They include Denmark.

The adjudicator said:

"With regard to whether or not Germany is a safe third country which would honour its obligations under the Convention, I have taken account of the fact that Mr. Murphy did not in my view seriously seek to argue that Germany was not a safe third country which would honour its obligations under the Convention. It is clear to me that Germany has taken, and is taking, every step towards that end, as set out in its legislation, and Dr L's letter. The main point relied upon by Mr. Murphy is that whereas Germany may well honour its obligations, and whereas the Secretary of State may well be correct in being so satisfied, there is nothing to indicate that Denmark is a safe third country which would honour its obligations, and as the documents produced stated that Germany would not consider an asylum application from a claimant who had passed through Denmark on the way to Germany, then it was necessary for the Secretary of State to satisfy himself as to the safety of Denmark, and that having failed to do so he had not made good his certificate, under paragraph 345 of the House of Commons Paper 395. In my considered opinion, there is no substance in that point as it is clear from the document produced, notably the letter from the German Bundesministerial of 22 December 1994 in reply to question 4, that the German authorities do not send asylum claimants back to countries which they do not consider safe and that they satisfy on this point before the deportation of any asylum seeker."

Mr. Murphy points to the case of Julia Martinas [1995] Imm AR 190, in which Simon Brown U said at 192:

"Deciding whether a third country is safe in my judgment involves no more than this ... and also whether if such third country were instead themselves in turn to contemplate the return of the claimant to the country, let us call it the fourth country' from which he or she had reached the third country, the third country would properly consider whether in turn that fourth country was safe in the same sense, namely that it too would deal properly under the Convention with both matters."

Mr. Murphy submits that where the arrangements in the third country require automatic return to a fourth of an entrant such as this applicant, the Secretary of State could not properly hold that the third country would satisfy its Convention obligations in a case where it would so return an entrant.

In my judgement, there is nothing in this application. The fact is that the German authorities have arrived at a judgement that Denmark is a safe third country. They have done, so, not doubt, by different legal or administrative mechanisms than those which operate here. The Secretary of State has considered the position in Germany, and himself made a judgement that Germany is a safe country: and, moreover, safe as regards the potential return of persons such as the applicant to any of the countries in the German list or schedule. The Secretary of State was, in my judgment, entitled to arrive at that conclusion. This is not a case in which any evidence was put before the adjudicator, as I understand it, that some special considerations arose as regards this applicant which would put him at risk in Denmark.

The application, as it seems to me, is based purely on the theoretical possibility that conditions might perhaps change in one of the countries listed in Germany's schedule before that country could be reconsidered by the German authorities. As to that I say nothing, save that there is not the slightest reason to suppose that any such difficulty has arisen in the present case.

Leave will be refused.

Application dismissed

Solicitors: M M Khan & Co. London, E10; Treasury Solicitor

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