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




Royal Courts of Justice Strand London WC2

Friday, 10th July 1998 Before: MR JUSTICE MOSES


MS S HARRISON (instructed by Winstanley Burgess, London EC1V 2QA) appeared on behalf of the Applicant.

MR D PANNICK QC and MR A McCULLOUGH (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.



The Applicant seeks to challenge a decision described in his Notice of Application as:

"A decision pursuant to a practice of:

i) The Secretary of State to require the Applicant to submit to examination and to provide details required by the Algerian authorities for the purpose of issue of a travel document."

The issue in this application is whether such requirements are lawful.

The Applicant is an Algerian. He made an asylum application in 1994 after he had been removed to France on third country grounds, was not admitted by France and returned to United Kingdom for substantive consideration of his asylum claim. On 29th April 1996 that application was refused.

In September 1997 his appeal to a Special Adjudicator was refused. In the course of his decision the Adjudicator said:

"... the appellant's entire story is a fabrication from beginning to end in order to support a bogus asylum claim."

As to whether this Applicant might face persecution on return to Algeria as a failed asylum seeker, he said:

"It is claimed that the appellant would be detained immediately on arrival in Algeria and that his background would then quickly emerge. However, in view of my findings of fact above, I see no reason to doubt that, if he is detained on arrival, he would then be released shortly thereafter."

Leave to appeal was refused by the Immigration Appeal Tribunal.

On 17th November 1997 the Immigration Officer at Dover sought, by fax, completion of a form which is set out at page 9 of my bundle, headed: "Individual File For Detainee". The form included a part to be filled in outlining the purpose of the detainee's visit, the number of entries in the United Kingdom and a whole passage about detention, including a space for a Tribunal reference number. It was sought to obtain that information for the purpose of obtaining travel documents from the Algerian Consulate with a view to this Applicant's removal. It was also required that a set of fingerprints be provided and photographs.

The Refugee Legal Centre, on 17th November 1997, raised its concerns as to the attempt by the authorities to obtain that information. It said:

"I am aware of growing concern about the activities of the Algerian Intelligence Service "outside Algeria, and I am left with the suspicion that the Consulate wish to obtain fingerprints and duplicate photographs ... as they feel that it is legitimate to maintain a close interest in Algerians abroad, as many are clearly perceived as being Islamist opponents of the current regime."

It went on to say that it will be

"... utterly inappropriate for the Consulate to able to obtain full details of [the] family in Algeria ..."

The response reiterated the request in a letter dated 15th December 1997, and said:

"Current advice is that where international protection either under the Convention or on humanitarian grounds is not warranted, returns to Algeria can continue under normal Immigration Service Procedures. UNHCR support this line."

These proceedings were then launched to challenge the power of the Secretary of State to obtain that information.

On 19th December the Immigration Office wrote that they were seeking the information so because the Algerian authorities required to issue a travel document and

"... it is surely up to them to dictate what information they require."

Pausing there, if that was a view expressed without regard to any risk that that might cause a person to be returned, that would clearly be an unlawful approach. However, that letter must be viewed in the context of the rest of the material to which I now refer.

On 19th December the UNHCR (the United Nations High Commissioner for Refugees) wrote in relation to the assertion that had been made in the letter from the Immigration Office:

"Please be advised of a press release issued by UNHCR of 18 September 1997 in which it is stated, UNHCR, '... strongly appeals to government not to deport Algerian asylum-seekers without due consideration of the security risk they may face if they returned to Algeria this time'. Thus UNHCR do not support returns to Algeria under normal Immigration Service procedures."

The Secretary of State has modified his stance since that initial exchange. He no longer asserts a power to fingerprint, but he still requires a form to be filled out in Part 1 and that Home Office reference numbers should be given, apparently for the purposes of an internal monitoring and tracing of the Applicant in question. There is evidence that has been put forward on behalf of this Applicant that even a Home Office reference number may enable those who are interested to obtain asylum decisions.

The essential complaint made by the Applicant in this case is that by insisting on a form being filled out with a Home Office reference number and the supply of photographs, the Applicant will face an increased risk that he may face persecution for a Convention reason or ill-treatment contrary to the European Convention on Human Rights.

It is important in this application to identify with precision what it is that is being challenged. It is the decision of the Secretary of State to examine a failed asylum seeker pending his removal in order to facilitate that removal. That decision is challenged, first, on the ground that the Secretary of State has no power to require the Applicant to fill out the form, attend for examination or give photographs or other details to be passed onto the Algerian authorities. In order to assess that ground of challenge it is necessary to consider the statutory framework.

Section 3(1)(a) of the Immigration Act provides:

"Except as otherwise provided by or under this Act, where a person is not [a British citizen]-

(a)  he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;

(b)  he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

"(c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both."

Section 4(2)(c) provides:

"The provisions of Schedule 2 to this Act shall have effect with respect to-

(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully; ..."

Schedule 2, pursuant to section 4(2) of the Act, provides by paragraph 3(1):

"An immigration officer may examine any person who is embarking or seeking to embark in the United Kingdom [...] for the purpose of determining whether he is [a British citizen] and, if he is not, for the purpose of establishing identity."

Ms Harrison, on behalf of the Applicant, suggests that that contains the limits of the power of an Applicant if he is not being detained. All details must be obtained during the course of, for example in the instant case, the processing of an asylum claim.

Once that claim has been refused, the powers to examine someone who has not been detained come to an end.

Paragraphs 8, 9 and 10 contain powers of the Secretary of State to make directions in relation to removal, for example, of an a illegal entrant.

By paragraph 16(1) and (2):

"(1) A person may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

(2) A person in respect of whom directions may be given under any of the paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given."

Paragraph 18(2) provides:

"Where a person is detained under paragraph 16, any immigration officer, constable or prison officer, or any other person authorised by the Secretary of State, may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying him."

It is true that there is no express power contained within Schedule 2 to examine someone in the situation of the Applicant if he is not being detained.

But, in my judgment, it is clear that the Secretary of State has power to ask such a person, in the position of this Applicant, to submit voluntarily to examination pending directions and removal. It would be absurd if the Secretary of State had such power only if he detained someone in order to facilitate directions under paragraph 8 of Schedule 2 and removal. If such a person refuses, it is plain to me that the Secretary of State has power to detain him in order to exercise his powers under paragraph 18(2). It will be wholly contrary to the interests of those liable to be removed if it was necessary, so that such an examination could take place, that that person should be detained. It is implicit, in my judgment, in the power to give directions and to order removal that there is power to ask questions and obtain information relevant to those directions and removal.

The decision of Woolf J in R v Governor of Durham Prison, ex parte Hardil Singh [1984] 1 WLR 704 establishes the lawfulness of detention pending co-operation of the authorities of the country to whom it is sought to return, in that case, a deportee.

I reject the submission that the Secretary of State has no power to seek information for the purposes of forwarding sending it to the country to whom it is proposed to remove one who has been refused leave, save by detention and exercising power under paragraph 18(2).

The problem in this case lies, however, not so much with the exercise of the power to obtain such details and passing them to the country to which it is proposed to remove that person, but with the question whether thereby he faces an increased risk of persecution for a Convention reason, if removed.

The difficulty which has arisen in this case lies in the nature of the challenge. The real complaint, in my judgment, is that the Secretary of State has rejected, hitherto the contention that this Applicant is at risk at all. That is the logically prior question. It matters not if a person in the situation of this Applicant has to undergo an examination of the type sought in the instant case if there is no risk.

The direction of this challenge to the examination deflects attention from the real question in this case, namely whether the view that the Applicant was not at risk reached by the Secretary of State was irrational or a conclusion that he has failed adequately to justify, bearing in mind the dreadful consequences should the view that it is safe to return him prove to be wrong.

The Secretary of State in the context of protests at the examination has made comments about the safety of return which I have already recorded, on 15th December of 1997. There have been amplified in an affidavit sworn by Mr Harrison, an Inspector with the Immigration Services Asylum Liaison Unit, in which he states: B9-10

"28. ... there is no reason why the details requested to enable completion of the travel document application should lead the Algerian authorities to believe that Mr ['Z'] had unsuccessfully sought asylum. However, even if they were to come to know this, the Secretary of State considers that there is no reason to doubt the Special Adjudicator's conclusion that he would not face any risk of persecution for a Convention reason on his return at this time.

29. In recognition of the current situation in Algeria, the Secretary of State has recently instituted an exceptional procedure in relation to failed asylum seekers who are to be returned to Algeria. A review is now made of Algerian cases prior to removal directions being set, taking into account the latest advice as to the situation. A further review is then undertaken as close to the time of removal as possible in order to ascertain whether the situation has changed or there are any outstanding representations. This exceptional arrangement is not required before removal under normal Immigration Service procedures.

30. As at 10th March 1998, on the basis of all the information available to him at that date, including the latest advice from the UNHCR and the Foreign and Commonwealth Office, the Secretary of State did not consider that Mr ['Z'] would encounter persecution for a Convention reason (nor any particular difficulties) on his return to Algeria, even if he were recognised as a failed asylum seeker. In reaching this view, the Secretary of State has also considered both Professor Seddon's report of 18 December 1988 and material exhibited to Mr Burgess' third affidavit. ..."

[Mr Burgess provided full and helpful information in his capacity as solicitor instructed by this Applicant]:

"... Nevertheless, under the additional safeguards provided by the exceptional policy currently in force, the situation would be re-assessed prior to the setting of removal directions, and again as close to the time for removal as possible."

Mr Basten, an Executive Officer in the Immigration and Nationality Directorate, has given more up-to-date evidence as to the Secretary of State's views in an affidavit sworn on 8th July 1998. He says in that affidavit:

"3. I understand the position of the UNHCR to be that countries should exercise extreme caution in considering the return of failed asylum seekers to Algeria and while they do not call for a general ban on removals to Algeria or for a positive group determination on a prima facie basis, they consider that the potential risks that a failed asylum seeker may face upon return must be duly assessed in the light of all the circumstances of the case. ...

I understand from Mr Edward Latham of the Treasury Solicitor's Department that the Applicant's advisers have indicated that they may wish to submit further material in support of the Applicant's claim that he will face persecution for a Convention reason as a failed asylum seeker if he were to be returned to Algeria. The Secretary of State will consider any such material when deciding first, whether to return the Applicant to Algeria and second, whether such material raises a new asylum claim on which the Applicant would be entitled to a fresh right of appeal."

The Applicant relies upon the letter from the United Nations High Commissioner for Refugees in the fax dated 19th December 1997 which I have already read. That merely requires due consideration of the security risk. That consideration, as the evidence demonstrates has taken place.

It is said that the Secretary of State has not sufficiently considered other material of substance and, particularly, the evidence from a reputable source: Professor Seddon. The Secretary of State, in the evidence I have read out, says he has.

That material paints a depressing picture of the security regime in Algeria and certainly provides a substantial body of material on which a view might well be taken that, if the authorities discover that the person being returned is a failed asylum seeker, he may be subject to torture or even worse, death.

The view taken by the Secretary of State is said to be flawed because he has given no reason why that which is contained in that material, has been rejected. If such material is to be rejected, it is said, the reasons must be carefully and adequately stated (see the decision of Popplewell J in R v Secretary of State for the Home Department, ex parte Chahal (unreported) 2nd December 1991, pp 16-17.

The difficulty with that submission is that it ignores the context in which the Secretary of State's observations in this case came to be made. They were made in seeking to justify a decision to obtain further details as to the Applicant's identity in order to obtain travel documents from the Algerian Consulate. This case is quite unlike the case of ex parte Chahal in which the observations of Popplewell J were directed towards the consideration of a claim for asylum. That seems to me where this case has gone wrong. The challenge might have had some force if this was an application for asylum made on the basis of the risk that the Applicant faces on his return. In essence what the Applicant is saying in this case is that whatever precautions the Secretary of State takes in giving his details to the Algerian Consulate, he faces a real risk that he will be found out as a failed asylum seeker and persecuted as a result. But the complaint in the application is made only in relation and in the context of the process of examination.

There is a further difficulty. Much of the information helpfully and conscientiously by Mr Burgess of Burgess Winstanley, on behalf of the Applicant, was obtained after the decision of the Secretary of State. The Secretary of State accepts that it gives cause for concern, as paragraph 30 of the affidavit of Mr Harrison and paragraph 4 of the affidavit of Mr Basten bear witness. He is going to consider it again. That has been repeated in open court before me. That fresh information will be considered and it will then fall for the Secretary of State to decide whether to accept the Applicant's fears and not return him or make a decision that this is not a fresh application applying the principles in ex parte Onibyo [1996] Imm AR page 370 (in which case the Applicant, if he sees fit, may challenge that decision by way of judicial review) or decide to treat the matter as a fresh application, giving the Applicant the opportunity, if that decision is adverse, to appeal again to a Special Adjudicator.

Thus the question of risk which this Applicant faces falls still to be considered. The attack on the examination is, in my judgment, misdirected and premature. No Order for removal has yet been made and it will not be made until the Secretary of State has considered afresh all the material relating to the risk of return upon which the Applicant now relies.

For these reasons the application fails. The Secretary of State does have power to obtain sufficient details and material to facilitate the giving of directions and making the Order for removal. His conclusions as to the risk were made not in the light of a claim for asylum but in the context of the challenge to examination and in that context they are not flawed. The Applicant now has the opportunity, as he always has had, to seek a decision from the Secretary of State as to the risk in the light of the new material.

I well understand the anxiety of those who have advised this Applicant and, in particular, the anxiety of the Refugee Legal Centre. But it seems to me that the vital interests of this Applicant are best protected in cases such as these by focusing attention on the real issue, namely whether an Applicant, in the position of this Applicant, will be at risk as a failed asylum seeker if he is returned, and by concentrating on the quality of a decision by the Secretary of State once it is made if it should proved to be adverse. That decision can, in my judgment, only be properly judged at that time.

MR PANNICK QC: I am grateful to your Lordship. The Applicant, I assume, has the benefit of legal aid with a nil contribution.

MS HARRISON: My Lord, that is right.

MR PANNICK QC: I make no application for costs.

MR JUSTICE MOSES: Do you want legal aid taxation?

MS HARRISON: My Lord, that is right.

MR JUSTICE MOSES: You may have it.

MS HARRISON: My Lord, there is only a very short matter as well. In your Lordship's judgment, at one point you referred to the Refugee legal Centre as the "Refugee Legal Council". It is only for the shorthand writer.

MR JUSTICE MOSES: When I get the transcript to revise, I will try and remember to change it.

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