R (Ali GASHI) and The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WILSON |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWHC 203 (Admin),[2003] EWHC 1198 (Admin) |
| Date | 23 May 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4114/2002 |
[2003] EWHC 1198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Maurice Kay
Case No: CO/4114/2002
Stephanie Harrison (instructed by Wilson & Co) for the Claimant
Ashley Underwood QC and John Paul Waite (instructed by The Treasury) for the Defendant
The Claimant is from Kosovo and is an ethnic Albanian. On 1 June 1998 he left Kosovo and went to Italy. Whether or not he claimed asylum in Italy is uncertain. What is clear is that he was almost immediately made the subject of an expulsion decree by the Italian authorities. Fearing that he was on the point of being returned to Kosovo, the Claimant fled to England, arriving on 12 June 1998, whereupon he claimed asylum. The subsequent history is complicated but the essential facts are as follows. On 29 September 1998 the Secretary of State requested the Italian authorities to accept the return of the Claimant under the Dublin Convention. On 24 November they agreed to do so. Accordingly, on 30 November the Secretary of State refused his asylum claim without substantive consideration. There followed the Claimant's first application for judicial review which was soon adjourned pending the outcome of the Adan litigation, which culminated in the decision of the House of Lords in December 2000, [2001] 2 AC 477. By then the Claimant's wife and two children had arrived in this country on 27 October 2000. Three days later she claimed asylum, naming the two children as dependants. The two children are a girl, Elida, who was then aged 15, and a son, who was then aged 8.
On 19 January 2001, the Claimant's solicitor invited the Secretary of State to consider his application substantively in the light of Adan and the arrival of his wife and children. There was further correspondence between the solicitor and the Secretary of State. On 18 April 2001 the Secretary of State refused the wife's asylum claim. She lodged an appeal under sections 65 and 69 of the Immigration and Asylum Act 1999. That appeal has yet to be determined. On 17 October 2001 Elida applied for asylum in her own name. Her application is based upon an account of a traumatic experience in Kosovo, the details of which are still not known to the Claimant, and to which I shall not refer in this judgment. This application has not yet resulted in a decision by the Secretary of State.
On 20 December 2001, the Secretary of State withdrew his original certificate in the Claimant's case and re-certified the claim under section 11 of the 1999 Act. On 11 February 2002 the Secretary of State declined to consider the Claimant's asylum application substantively and certified his linked human rights claim, which was based primarily on Article 8, as manifestly unfounded under section 72(2)(a) of the 1999 Act. The Claimant sought to amend the original application for judicial review so as to challenge that decision. However, on 18 February 2002 he withdrew that application in order to make a second application for judicial review.
Before the second application was lodged, the Secretary of State announced a change in his policy on the exercise of discretion in safe third country cases where family ties in the United Kingdom are claimed. The previous policy, which was set out on 21 March 1991, was that
“potential third country cases would normally be considered substantively where
(a) the applicant's spouse is in the United Kingdom;
(b) the applicant is an unmarried minor and a parent is in the United Kingdom;
(c) the applicant has an unmarried minor child in the United Kingdom. (In all cases ‘in the United Kingdom’ should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker).”
In R (on the application of Nadarajah) v. SSHD [2002] 2595 Admin, Stanley Burnton J held that, contrary to the submission there made on behalf of the Secretary of State, such a spouse, parent or unmarried minor child would still be “in the United Kingdom” as an asylum seeker after refusal of asylum by the Secretary of State but before the determination of a pending appeal. The 1991 policy was changed on 22 July 2002. The significant change for present purposes is that “in the United Kingdom” is now to be taken as meaning
“with leave to enter or remain or on temporary admission to this country as an asylum seeker prior to an initial decision on their application.”
On 30 July 2002, eight days after the commencement of the reformulated policy, the Secretary of State again refused to consider the Claimant's application substantively. He maintained the certificate and indicated that the Claimant would now be removed to Italy. That was the catalyst for this second application for judicial review. It was originally based on a number of grounds of challenge. However, in a careful judgment handed down on 7 February 2003, Wilson J granted permission only in respect of one ground of challenge.
It is common ground that, under the 2002 policy, the Claimant cannot invoke the pending appeal by his wife. She is no longer “an asylum seeker prior to an initial decision” on her application. The issue now relates to the position of Elida. The case for the Claimant is that her free-standing application in her own name on 17 October 2001 is not yet the subject of “an initial decision”. (Apparently this is the result of administrative oversight in the Home Office). Accordingly, the Claimant seeks to rely on paragraph (c) of the policy. The primary case for the Secretary of State is that Elida was herself an applicant in the claim advanced by her mother and there was an “initial decision” in relation to that application on 21 December 2000. Consequently, the Claimant cannot rely on Elida's later application. It is submitted on behalf of the Secretary of State that (1) that is the true meaning of the 2002 policy; in the alternative, (2) it is a meaning reasonably ascribed to it by the Secretary for State; or, in the further alternative, (3) in any event he has a residual discretion under the policy and he has exercised it lawfully in the interests of the integrity of immigration control.
1. The true construction of the 2002 policy
In their submissions on the true construction of the policy, Miss Harrison on behalf of the Claimant and Mr. Underwood QC on behalf of the Secretary of State each seek to draw support from the provisions of the Immigration Rules (HC395). The main provisions to which they refer are as follows:
“327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under [the Refugee Convention] for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.
329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under section 11 or section 12 of the Immigration and Asylum Act 1999, no action will be taken to require departure of the asylum applicant or his dependants from the United Kingdom.
349. A husband or wife or minor children accompanying a principal may be included in an application for asylum. If the principal applicant is granted asylum any such dependants will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right and would otherwise be refused leave to enter or remain will be considered individually in accordance with paragraph 334 above. If the dependant has a claim in his own right, it should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where the principal applicant is refused asylum and the dependant has previously been refused asylum in his own right, the dependant may be removed forthwith, notwithstanding any outstanding right of appeal that may be available to the principal applicant. At the same time that asylum is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State's intention to deport him, as appropriate.”
When the Claimant's wife applied for asylum, the statement which supported the application referred to “my asylum application” and asserted a fear of persecution in Kosovo “on account of my ethnic origin and perceived political opinions”. She added that “we left because I had been threatened by the Police and I knew that I was not safe and I know that sooner or later myself and my children would be harmed”. She stated that on an occasion when the Police came to the house, both she and the children were threatened and that they were frightened. However, the application contained no reference to the account upon which Elida now seeks to rely. When the Secretary of State refused the application which had been made by the Claimant's wife, he wrote to Elida (and her brother) under the heading “Refusal of a Dependant”. The letter stated:
“you have applied for leave to remain in the United Kingdom as the dependant of [Mrs Gashi] who has claimed asylum on the grounds that she has a well-founded fear or persecution in Kosovo for reasons of race, religion, nationality, membership of a particular social group or political opinion.
In the light of all the evidence provided, the Secretary of State has concluded that [Mrs Gashi] does not qualify for asylum. As her dependants, your applications are accordingly refused under paragraph 349.”
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