R v. Secretary of State for the Home Department and an Immigration Officer, Ex parte S

IN THE HIGH COURT OF JUSTICE NO: CO/342/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice Strand London WC2

Thursday 7th May 1998

Before: MR JUSTICE FORBES

Regina-v-SECRETARY OF STATE FOR THE HOME DEPARTMENT and AN IMMIGRATION OFFICER EX PARTE S

MR D SEDDON (instructed by John R Bottrill, London N22 6BH) appeared on behalf of the Applicant MR A UNDERWOOD (instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the Respondent

JUDGMENT

MR JUSTICE FORBES:

This is an application for relief by way of judicial review of the decision of the Secretary of State for the Home Department, dated 28th January 1998, to maintain a certificate which had been issued under section 2 of the Asylum and Immigration Act 1996 on 16th January 1998, in relation to the applicant's claim for refugee status in the United Kingdom.

The applicant is a Kurd and claims to be a citizen of Iran. He claims that he was in Iran until February 1996 when he fled in fear of his life. Having fled Iran, he eventually arrived in Holland in April 1996, having travelled there from Bombay. Once he had arrived in Holland he sought refugee status there under a false name. In May 1996 he was granted a conditional Dutch residence permit. Circumstances then arose in which it appeared to the applicant that his presence in Holland had come to the attention of the Iranian authorities and so, on 19th October 1997, he travelled to the United Kingdom and claimed refugee status on arrival, using his correct identity.

The applicant was interviewed, in connection with his claim for asylum, on 17th and 27th November 1997. At the outset, he was told the following by the immigration officer:

"You have asked for asylum in the United Kingdom and I will now ask you questions to establish why you need asylum. I will write down what you tell me and this record will be passed to officers in the Asylum Directorate of the Home Office.

"Officers in the Home Office's Asylum Directorate will decide whether you should be given asylum in the United Kingdom. These officers know about what is happening in your country. They may also make enquiries to see whether another country is responsible for deciding whether you should be granted asylum. If they decide that your claim should be considered in another country, they may refuse your application without giving it full consideration. You may then be sent to this other country.

"You do not have to leave the United Kingdom while the Asylum Directorate is considering your application and you will be informed of the decision as soon as it is made.

"Information you give us will be treated in confidence, but may be disclosed to other government departments and agencies, local authorities and international organisations to enable them to carry out their functions. Information may also be disclosed in confidence to the asylum authorities of other countries which may have responsibility for considering your claim.

"At the end of the interview I will give you a copy of the notes I have taken. If at any time you do not understand you must tell me immediately."

In the course of the interviews, the applicant was questioned about the country from which he had come. He gave an account of having come to the United Kingdom from India. He did not admit to having come to the United Kingdom from Holland, as was the truth of the matter. There came a stage when the immigration officer asked the applicant questions about this aspect of the matter. I quote from page 6 of the interview which took place on 17th November 1997:

"Question: I have a problem with your account. We have immigration officers, who watch people disembark flights. You were seen by one of my colleagues, who recorded your details, you were seen disembarking a flight from Rotterdam in Holland?

Answer: Well previously it seems that they were forcing me to say I was coming from this country. I can give you a description of the place I came from.

Question: But you were seen disembarking from this flight?

Answer: Well if you are so sure why don't you return me back to this country, why don't you return me there. This is the first time I have heard of this place since it has been mentioned. I had this problem with the previous immigration.

Question: Why are you so sure you didn't come from Rotterdam?

Answer: I have come from a country. I don't know where. I can give you the details. But the first place I embarked was Bombay, the second place had a huge lounge with shops and restaurants."

The interview went on with the applicant continuing to deny that he had knowingly arrived in the United Kingdom from Holland. The Secretary of State also made further enquiries about the applicant's identity and actual movements. This culminated with the Secretary of State's decision to return the applicant to Holland pursuant to the provisions of the Dublin Convention, which decision was communicated by letter dated 16th January 1998, the material terms of which are as follows:

"You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Iran for reasons of race, religion, nationality membership of a particular social group or political opinion.

"However, Iran is not the only country to which you can be removed. Under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of Member States of the European Communities (the Dublin Convention) the authorities in Netherlands have accepted that Netherlands is the State responsible for examining your application for asylum.

"You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, removable to the Netherlands which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.

"Paragraph 345 of HC 395 of the Immigration Rules provides that an applicant will normally be refused without substantive consideration if there is a safe third country to which the applicant can be sent. The Secretary of State can find no grounds for departing from this practice in your case.

"On the basis of his knowledge of the immigration policies and practices of the Netherlands, and on previous experiences in returning passengers to Netherlands, the Secretary of State is of the opinion that, in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention. He hereby certifies, therefore, that the conditions mentioned in section 2(2) of the Asylum and Immigration Act 1996 are fulfilled; namely that:

"-- you are not a national or citizen of Netherlands,

"-- your life and liberty would not be threatened in Netherlands by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and that

"-- the government of Netherlands would not send you to another country or territory otherwise than in accordance with the convention."

For it to be lawful to remove the applicant to Holland without substantive consideration of his claim to refugee status, it was necessary for the Secretary of State's to give the certificate pursuant to Section 2 of the Asylum and Immigration Act 1996 which, so far as material, provides as follows:

"(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if

"(a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection 2 below are fulfilled;

"(b) the certificate has not been set aside on an appeal under section 3 below; and

"(c) except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.

"(2) The conditions are:

"(a) that the person is not a national or citizen of the country or territory to which he is to be sent;

"(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

"(c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention."

On the information then before the Secretary of State, there was no reason to doubt that each of the conditions under subsection (2) was satisfied. At that stage, no information had been provided to the Secretary of State which suggested that there would any threat to the life and liberty of the applicant if he were returned to Holland. Mr Seddon, who presented this matter on behalf of the applicant, made it clear that there is no challenge to the lawfulness of the original decision of the Secretary of State or of the certificate which was contained in the letter of 16th January 1998, nor could there be.

However in a letter dated 26th January 1998, written by solicitors on behalf of the applicant, further information about the applicant was provided to the Secretary of State, as follows:

"Firstly, our client as you are aware, previously claimed asylum in Holland. The name provided in relation to that claim was Masoud Nikje (pronounced 'Nicky'.) No documents were presented to the Dutch authorities in relation to this identity. We understand that the Dutch spelling of such a name is indeed Nikje. Our client claimed to an Iraqi national of Kurdish ethnic origin and he was granted a Dutch residency permit and was permitted to stay in that capacity. This was in May 1996. In the United

Kingdom our client has presented you with his true identity, namely that he is a national of Iran, his name being Masoud Sadeghi-Nikcheh (we understand that this is the proper spelling of our client's name translated from the Farsi). The pronunciation of the second part of our client's surname is wholly different to that provided to the Dutch. Our client has provided you with documents in this identify. Our client also has a copy of his birth certificate which we will be happy to forward to you.

"Our client behaved in this way in Holland as he was in intense fear of being pursued by the Iranian authorities who, as it is well-known, conduct operations against Iranian nationals overseas. Our client left Holland and travelled to the United Kingdom on 19th October 1997 as a result of receiving information in Holland that his whereabouts had become known to the Iranian authorities. Our client has been passed this information by his family and he suspects that the Iranian authorities may have discovered this by listening into telephone conversations between his family members in Iran in which the country of residence may have been let slip. Our client, acting in fear sacrificed his existing permission to remain in Holland to come to the United

Kingdom to claim asylum. If you require further details as to the experiences of our client's family as soon as our client left Iran or as to the danger he considers himself to be in Holland, we would be happy to supply them. In our view, the condition in section 2(2)(b) of the 1996 Act is not satisfied.

I then omit the next paragraph and continue with the following paragraph of the letter:

"Our client was interviewed in relation to the possibility of his being sent to a third country on 19th October 1997. Our client was then interviewed on 17th and 27th November 1997 and on those dates substantive details of our client's claim were taken. The latter two interviews took approximately nine hours our client incurred a great deal of stress in providing those details over a period of time. It is in our view unfair to fail to come to any conclusion as to, and/or take into account those details in such circumstances in deciding whether to effect removal to a third country. We refer further in this regard to article 3.4 of the Dublin Convention which suggests that responsibility for dealing with the asylum claim is transferred where the second examines the claim substantively. If, as it appears to us, the substantive details were not taken into account in making the decision to issue the certificate, can you please confirm to us the reasons why our client was interviewed in relation to those details. The need to take those matters into account and to make findings thereto is now compounded by our client's assertion that the condition in section 2(2)(b) is not satisfied."

It was in response to that letter that the Secretary of State wrote the letter of 28th January 1998, which contained the decision which is the subject matter of the challenge in these proceedings. The letter of 28th January contained the following relevant passages:

"You state that Holland cannot be viewed as a safe country for your client as he was in fear of being pursued by the Iranian authorities who were aware of his whereabouts.

"The Secretary of State is aware that your client arrived in the United Kingdom on 19th October 1997 as passenger on fight KL483 from Rotterdam, probably using the name Eilat, though your client denies this. On arrival he sought asylum in the United Kingdom.

"He stated that he had left Iran some 25 days before his arrival in the UK and crossed on foot into Turkey from where he claimed to have flown to Bombay and then to Rotterdam where, after 4 or 5 hours, he boarded the flight to the United Kingdom.

"Enquiries with the authorities in the Netherlands, which included fingerprint comparison, conclusively show that your client was known to the Dutch authorities as Mahmoud Nikje, an Iraqi national who had sought asylum in April 1996 and who had been granted conditional residence. The authorities in the Netherlands have confirmed that your client had sought asylum there in the Iraqi identity in April 1996. He was refused asylum in May 1996 but granted 'Provisional Residence' in the Netherlands on humanitarian grounds. The Secretary of State has been informed by the Dutch authorities that the provisional residence granted your client is renewable annually and after 3 years he will be granted unconditional residence in Holland. They have confirmed that he is readmissible to the Netherlands to continue this residence and that this grant of provisional residence on humanitarian grounds ensures that he would not be expelled from Holland.

"The Secretary of State has been informed that your client stated to the Dutch authorities that he had been born in Sulaymaniyah in Iraq and had lived there until 1980 when he went, with his parents, to Iran. He stated that he lived in Iran until April 1996 when he travelled to Turkey before travelling on clandestinely to the Netherlands. The authorities in the Netherlands remain satisfied that your client is in fact a national of Iraq as he maintained throughout his dealings with them in 1996.

"The Secretary of State has been further informed by the Dutch Ministry of Justice that your client, should he choose to do so, may make a fresh application for asylum in his claimed Iranian identity on his return to the Netherlands. He would be interviewed on his return and given the opportunity to explain why he has used a different identity from the one he previously used in Holland and, if his explanation is credible, this fresh application will be considered substantively on its merits. I enclose a letter from the Immigration and Naturalisation section of the Dutch Interior Ministry which confirms this ..."

"... In your client's case the Secretary of State is satisfied that the Dutch authorities will not sent your client anywhere other than in accordance with the Convention.

"The Secretary of State is aware that the Netherlands is a full signatory to the 1951 Convention and 1967 Protocol, the Chicago Convention and, as a member state of the European Union, is party to the various EU resolutions on asylum. As such, he believes that there are good grounds for his expectation that the Netherlands will abide by its international obligations. Furthermore the Secretary of State is satisfied, on the basis of all evidence available to him, that Dutch immigration law and practice in fact provides proper procedures for dealing with asylum applicants in accordance with the requirements of the Convention and that the Dutch authorities do not return asylum seekers to their country of origin contrary to their international obligations.

"The Secretary of State can find no compelling, compassionate grounds which would cause him to depart from his normal policy and practice in your client's particular case and no reason why a second application for asylum should be considered in the United Kingdom."

On behalf of the applicant Mr Seddon submitted that, in the light of the fresh information which had been supplied to the Secretary of State by and on behalf of the applicant and to which the Secretary of State had responded on 28th January 1998, it was clear that the Secretary of State was no longer in a position to maintain his certificate under section 2 of the 1996 Act, because the condition required by section 2(2)(b) was no longer satisfied. Mr Seddon argued that the facts relating to this applicant showed that, if he were returned to Holland, his life and liberty would be threatened, because his presence in that country had, by then, come to the attention of the Iranian authorities. Mr Seddon submitted that Iran is a country which is prepared to engage in terrorist activities to pursue those who are sought by the Iranian authorities. The factual circumstances relating to this applicant were such, it was submitted, that he was being sought by the Iranian authorities by whatever means were necessary with a view to inflicting punishment on him of a type and in circumstances which would clearly amount to persecution for a Convention reason. The relevant factual material is set out in the affidavit of the applicant, in which he gives details of the work that he carried out for the Iranian authorities, during which he had passed on sensitive information to outside sources, with the result that he became the subject of investigation by the Iranian secret police. It is not necessary to set out all the details of these various matters in the course of this judgment. I refer to the contents of the affidavit and to the documents which were supplied in support of the applicant's claims. I am satisfied that they elaborate the general assertions made in the applicant's solicitors' letter of 26th January 1998 and lend substance to those assertions.

Mr Seddon also drew my attention to the contents of a publication of the Parliamentary Human Rights Group, dated June 1996, which is entitled "Iran: State of Terror", the joint authors being Lord Avebury and Robert Wilkinson. This publication is the result of work carried out by the Parliamentary Human Rights Group, which was founded in 1976 as an independent forum concerned with the defence of international human rights. For the purposes of this judgment, it is sufficient to quote one passage, from the various passages to which I was referred, namely that which occurs at the beginning of the introduction, where the authors say this:

"Now, for the first time, a dictatorship is reaching out it tentacles into the free world, to hunt down and kill its opponents living in exile. The Iranian regime stands accused of widespread use of extrajudical killings as part of its reign of terror at home, but sends its agents into the farthest corners of the earth, to plan, commit and instigate murders and other acts of terrorism and violence. This report is an attempt to summarise the evidence, so that Members of Parliament and others may consider what action should be taken by the international community against the leaders of a state which uses assassination as an instrument of policy."

Stated shortly, it was Mr Seddon's submission that, now that it is known that he was resident in Holland, the applicant is at serious risk of being pursued there by agents of the Iranian government, for the purpose of reprisals being taken against him by whatever unlawful means are considered appropriate. In those circumstances, Mr Seddon submitted that, unless the Secretary of State has considered fully all the circumstances relating to the applicant and all the various ways in which he could be protected against the threat of terrorist activity in Holland, he cannot rationally or reasonably maintain his certificate under section 2 of the 1996 Act, because condition 2(2)(b) will no longer be satisfied. Mr Seddon referred to the decision of the Court of Appeal in Canbolat v Secretary of State for the Home Department, (1977) Immigration Appeal Reports page 442, and to the judgment of Lord Woolf at page 450, where he said:

"We do not accept Mr Pannick's adoption of a reasonable degree of likelihood test. This submission involves a lower threshold than that laid down by the Act. Section 2 requires the Secretary of State to certify 'the conditions mentioned in subsection (2) below are fulfilled'. The relevant condition which he had to certify was fulfilled which was in issue was 'that the government of [France] would not send [her] to other country or territory other than in accordance with the Convention.' The language of the condition is unqualified. This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by section 6 of the 1993 Act. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will if it operates as it usually does provide the required standard of protection for the asylum seeker."

Mr Seddon submitted, correctly in my view, that condition 2(2)(b) of the 1996 Act is also unqualified in its terms. The condition which has to be satisfied is that the life and liberty of the applicant would not be threatened in Holland by reason of his race, religion, nationality, membership of a particular social group or political opinion. I accept Mr Seddon's submission that it would not be sufficient for the Secretary of State to decide that condition 2(2)(b) was satisfied on the balance of probabilities or that there was a reasonable likelihood that the life and liberty of the applicant would not be threatened in Holland. I accept that, before the Secretary of State can lawfully certify that condition 2(2)(b) of the 1996 Act is met, he must be rationally satisfied that the life and liberty of the applicant would not be threatened in Holland if he were to be returned to that country. If he were not so satisfied then he would not be in a position to grant or maintain the necessary certificate under the 1996 Act. Mr Seddon's submission was that, in the circumstances of this case, and in the light of the further information which had been provided to the Secretary of State, which demonstrated that the life and liberty of the applicant would be threatened if he were to be returned to Holland, the Secretary of State's failure to revoke and his decision to maintain his earlier decision to grant the certificate in question was unlawful, irrational and/or Wednesbury unreasonable.

On behalf of the Secretary of State Mr Taylor has affirmed an affidavit, dated 13th February 1998. He is a senior executive officer in the Asylum Directorate of the Immigration and Nationality Directorate of the Home Office. He is a senior case worker and is responsible for the day-to-day operational management of the third country unit of the Asylum Directorate. In his affidavit Mr Taylor gives details of the immigration history relating to this applicant and at paragraph 6, states as follows:

"The applicant says that he came to the United Kingdom because he felt he was in danger in the Netherlands from the Iranian Secret Service. The Secretary of State believes that the Dutch authorities would have been willing and able to offer the applicant appropriate protection had he approached them, and he is satisfied that they will do so on his return there if he genuinely fears a threat to his life or liberty in the Netherlands."

In my judgment the conclusion which the Secretary of State has reached, that the Dutch authorities are willing and able to afford the applicant appropriate protection against such threat to his life and liberty as is presented by the Iranian secret service if he is returned to Holland, is a perfectly rational and/or reasonable one. Having reached that conclusion, the Secretary of State was then entitled to go on and decide that, because appropriate protection would be provided to him, the life and liberty of the applicant would not be threatened if he were to be returned to Holland.

Despite Mr Seddon's careful and detailed submissions to the contrary, I am satisfied that there is no basis for impugning the decision of the Secretary of State which is referred to in paragraph 6 of Mr Taylor's affidavit. It is clear from the correspondence, to which I have referred, that the Secretary of State has taken into account all the information which he has about Holland for the purposes of asylum cases. I see no reason why the Secretary of State has to set out lengthy and detailed reasons as to how he has arrived at the conclusion that he is satisfied that the Dutch authorities are willing and able to afford appropriate protection to the applicant against any threat presented to his life and liberty by the activities of the Iranian secret service or other agents of terror which that government might seek to employ. Accordingly I am satisfied that there is no substance in the first grounds of challenge to the decision of the Secretary of State.

The next matter raised by Mr Seddon was to the effect that the Secretary of State has failed to direct himself properly and apply the provisions of the Dublin Convention correctly to the circumstances of this case. Mr Seddon submitted that to return the applicant to Holland would amount to a breach by the United Kingdom of its treaty obligations under that convention. Mr Seddon referred, in particular, to Article 3.4 of the convention, which is in the following terms:

"Each member state shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto.

"The member state responsible under the above criteria is then relieved of its obligations, which are transferred to the member state which expressed the wish to examine the application. The latter state shall inform the member state responsible under the said criteria if the application has been referred to it."

Mr Seddon submitted that the two interviews in this country, to which the applicant was subject on 17th and 27th November 1997, which amounted to some nine hours in all, constituted an examination of the applicant's substantive claim for refugee status. Mr Seddon also referred to and relied upon the following passage of Mr Taylor's affidavit, where he said this at paragraph 3:

"The applicant was further interviewed on the 17th November 1997 about the substantive basis for his application and this interview was continued on 27th November. At this time the enquiries to the Dutch authorities were continuing."

Mr Seddon submitted that the Secretary of State has thus admitted that there has been substantive examination of the application for asylum and that, once that has occurred, the effect of Article 3.4 is to transfer the obligation to deal with the asylum claim from Holland to the United Kingdom. In those circumstances, Mr Seddon submitted, the applicant is entitled to the advantage of the provisions of Article 3.4 of the Convention, to ensure that he remains within the United Kingdom for the purposes of the examination and determination of his asylum claim. He argued that, if the applicant were to be sent to Holland now for the purposes of his asylum claim such action would amount to a breach of Article 3.4 of the Convention, to the detriment of the applicant. Accordingly, Mr Seddon submitted that the decision was unlawful and, to the extent that it was taken in consequence of any misunderstanding of or misdirection as to the effect of the provisions of Article 3.4 of the Convention it was, in any event, irrational.

I do not accept Mr Seddon's submission as correct. As Mr Underwood pointed out, the interviews in question were conducted at a time when it had been made known to the applicant that the immigration authorities were carrying out further investigations into whether another third country was responsible for dealing with his asylum claim. It must be borne in mind that the applicant had sought to mislead the immigration authorities in this country as to what had really happened. It was his case that he had come to the United Kingdom more or less directly from India, with only a temporary stopover in Rotterdam, and without having made any claim for asylum in Holland. However, the immigration authorities in the United Kingdom had good reason to doubt the accuracy of the applicant's account. It was therefore made clear to the applicant that the interviews about his asylum claim were entirely without prejudice to the possibility of his being returned to an appropriate third country, once investigations with regard to that matter had been completed. It was also made clear that the interviews in question were only being carried out whilst those further investigations were taking place. Once it became clear that the applicant had come from Holland, that he had made an asylum claim in Holland and that Holland was prepared to observe its obligations under the Dublin Convention by accepting responsibility for processing any further asylum claim which the applicant might care to make in the light of a truthful account of his background, there was no further investigation or examination of his claim for asylum in this country.

In those circumstances, as it seems to me, the immigration authorities in the United Kingdom never purported to exercise any unconditional or exclusive right to examine the application for asylum in this country. To the extent that there were interviews about the applicant's account of the matters which founded the substance of his claim for asylum, the interviews were expressly stated to be subject to the other enquiries then being carried out, as to whether or not there was an appropriate third country to which the applicant should be returned pursuant to the provisions of the Dublin Convention. I reject Mr Seddon's submissions to the contrary.

Those being the two matters which have been advanced by way of criticism of the Secretary of State's decision contained in his letter of 28th January 1998, I have come to the conclusion that there is no appropriate basis upon which to grant the relief sought by way of judicial review and accordingly this application is, for those reasons, dismissed.

MR SEDDON: I would ask your Lordship for leave to appeal in this matter for these reasons. Firstly, that there is no pre-existing authority on the application of section 2(2)(b) as opposed to section 2(2)(c), the latter being the more frequent provision which is litigated. In those circumstances it would be useful to have the Court of Appeal's views on the approach to the investigations that the Secretary of State must carry out when it is asserted that section 2(2)(b) is satisfied and the standard of reasoning that he must give in those circumstances.

Secondly, similarly in relation to article 3.4 of the Dublin Convention there is no authority that exists, other than your Lordship's, at present to determine the proper approach to that particular provision. Your Lordship has been referred to no authorities. In my submission they do raise important issues relevant to other asylum seekers and I ask for your Lordship's leave.

MR JUSTICE FORBES: Yes, thank you, Mr Seddon. No, I am not prepared to grant leave.

MR SEDDON: My Lord, the only other application I have is for legal aid taxation for the applicant's costs.

MR JUSTICE FORBES: Legal aid taxation for the applicant's costs.