R (Polat) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMR JUSTICE RICHARDS
Judgment Date13 December 2002
Neutral Citation[2002] EWHC 2833 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date13 December 2002
Docket NumberCO/2114/2002

[2002] EWHC 2833 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before

Mr Justice Richards

CO/2114/2002

The Queen on the Application of Polat
(Claimant)
and
Secretary of State for the Home Department
(Defendant)

MR D BAZINI (instructed by Irving & Co) appeared on behalf of the CLAIMANT

MR A UNDERWOOD QC & MISS J ANDERSON (instructed by The Treasury Solicitors) appeared on behalf of the DEFENDANT

Friday, 13th December 2002

MR JUSTICE RICHARDS
1

The court has before it an application for judicial review of a decision dated 19th April 2002 by which the Secretary of State certified as manifestly unfounded the claimant's claim that his return to Germany without substantive consideration of his asylum claim would be in breach of his human rights.

2

The factual background is as follows. The claimant claimed asylum in the United Kingdom on 20th June 1999, stating that he had left Turkey a few days previously. In fact, he had entered Germany on 7th March 1998 and had claimed asylum there. It would seem that his claim to asylum had been refused. After he came to the United Kingdom, responsibility for consideration of his asylum claim was accepted by Germany under the terms of the Dublin Convention. The Secretary of State certified the asylum claim on safe third country grounds and made arrangements for the claimant to travel to Germany. There was a judicial review challenge to that decision, which was finally dismissed in January 2002.

3

Thereafter the claimant advanced the contention that Article 8 of the ECHR would be breached by his removal to Germany on the basis that his wife had now joined him in the United Kingdom. She herself had claimed asylum upon her arrival here. The Article 8 grounds were rejected in the letter of 19th April 2002. The decision to remove the claimant was made and was challenged in these proceedings.

4

The application for permission was dismissed on the papers but renewed at an oral hearing before Ouseley J. As a result of something said in the acknowledgment of service, the claim was advanced before Ouseley J on the basis of a new point concerning the Secretary of State's family links policy. The original grounds of review were not pursued. Permission was granted on the new point, and that is the matter now before me for substantive determination.

5

The family links policy, as expressed at the time of the decision of 19th April 2002, was set out in a letter of 21st March 1991, quoted in the witness statement of Mr Sainsbury in the present case. It reads in material part:

"Potential third country cases would normally be considered substantively where: the applicant's spouse is in the United Kingdom; the applicant is an unmarried minor and a parent is in the United Kingdom or 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."

One sees a reflection of that, and of other parts of the policy which I think it unnecessary to set out, in the decision letter at paragraphs 6 to 8:

"6. The Secretary of State would normally consider the substance of a potential third country case where: the applicant's spouse is in the United Kingdom; the applicant is an unmarried minor and a parent is in the United Kingdom, or when the applicant has an unmarried minor child in the United Kingdom. In all cases 'in the United Kingdom' is to be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker.

7. The Secretary of State may exercise his discretion, according to the merits of the case, where a married minor was involved, the applicant was an elderly or otherwise dependent parent or where the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependant on the relative in the United Kingdom and that there was an absence of similar support elsewhere. Cases citing family links which would not normally be considered, and not displaying any of the features which engaged the exercise of discretion would not be considered substantively.

8. In your client's particular case, the Secretary of State does not believe that it would be appropriate for him to exercise his discretion to permit your client to remain in the UK to pursue a further claim for asylum—his asylum application in Germany having, on his own account, been refused."

6

In the acknowledgment of service, responding to the original grounds of challenge, it was stated as follows:

"3. The Claimant asserts that the Defendant stated in his letter of 19 April 2002 that the third country families links policy does not apply because the Claimant had an asylum claim refused in Germany. This is simply not true. The Defendant stated that it would not be appropriate for him to exercise his discretion and allow the Claimant a further claim for asylum in the UK, but this had nothing to do with the application of the policy. The reason the Claimant's case does not fall within the third country family links policy is that his wife is a failed asylum seeker."

7

Thus, what was being said was that the family links policy did not apply because the claimant's wife was a failed asylum seeker and was therefore not on temporary admission as an asylum seeker within the meaning of the policy, and therefore not to be treated as being in the United Kingdom for the purposes of the policy.

8

At the time of the decision the claimant's wife had had her claim to asylum refused, but an appeal was outstanding, as it still is, for reasons which it is unnecessary to consider. This led to the claimant arguing that the Secretary of State had misdirected himself as to the policy, the argument being that the wife was still an asylum seeker within the terms of the policy and that the policy applied to the claimant's case.

9

The matter was complicated by the fact that on 27th July 2002, after the decision in this case, the Secretary of State made a fresh statement as to the relevant policy. The policy so stated is in these terms:

"The policy on the exercise of discretion in safe third country cases where family ties to the United Kingdom are claimed is that potential third country cases would normally have their asylum claims considered substantively in this country where:

(a) an 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.

The policy in (a) would not be applied in cases where a marriage was contracted after the applicant's arrival in the United Kingdom. In all cases 'in the United Kingdom' is 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."

10

On the basis of the policy expressed in those terms, the claimant's wife is plainly not to be treated as being in the United Kingdom since she has got beyond the stage of an initial decision on her application for asylum. The initial decision made by the Secretary of State was to refuse the claim. The matter, as I have said, is on appeal.

11

All of this led to the grant of permission on the basis that there had been an arguable change in policy and that there had been a failure to interpret or apply the original policy correctly. That, in turn, led to a witness statement from Mr Sainsbury, on behalf of the Secretary of State, setting out the history of the policy and stating, in effect, that the policy set out in the statement of 22nd July 2002 was intended to clarify certain areas of ambiguity, but the Secretary of State had always applied the policy in the way set out in that statement. That is to say, it is said by Mr Sainsbury in substance that there has been no material change in the policy.

12

The claimant accepts that the policy as set out in the fresh statement would exclude him from its scope, but the claimant's case is that this was a change of policy and that the policy in existence at the time of the decision did not exclude the claimant; that in applying the policy as he did, and finding that the claimant was excluded from its scope, the Secretary of State misinterpreted or misapplied the policy; and that the decision should be quashed for that error of law.

13

The resolution of the dispute has been short-circuited by a judgment of Stanley Burnton J on 2nd December 2002 in The Queen (on the application of Nadarajah) v Secretary of State for the Home Department [2002] EWHC 2595 (Admin). In Nadarajah the judge had to consider, amongst other matters, essentially the same issue as is now before me. He ruled that the claimant's wife in that case was an asylum seeker on the natural meaning of the original policy. She had applied for asylum and, although the Secretary of State had refused it, she had appealed against his decision and had done so because she was still seeking asylum. The judge further held that the Secretary of State's interpretation of the expression "asylum seeker" in the original policy (that is to say, subject to the qualification that it applied only prior to an initial decision on the application) was not an interpretation reasonably open to him. It followed that the Secretary of State's decision was unlawful. In the circumstances of the case, however, the judge held that there was no point in quashing the decision and he declined to quash it in the exercise of his discretion.

14

Before me there has been no attempt to reargue...

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2 cases
  • E v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 February 2004
    ...including: Khan v Secretary of State [2003] EWCA Civ 530; R (Tataw) v Secretary of State [2003] EWCA Civ 925, [2003] INLR 585; Polat v Secretary of State [2003] EWCA Civ 1059; and Bagdanavicius v Secretary of State [2003] EWCA Civ 1605. In another, the Secretary of State himself relied, wit......
  • R (Polat) v Secretary of State for the Home Department
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    • Court of Appeal (Civil Division)
    • 15 July 2003

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