R v Secretary of State for the Home Department, ex parte Canbolat

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS
Judgment Date30 April 1997
Judgment citation (vLex)[1997] EWCA Civ J0430-17
CourtCourt of Appeal (Civil Division)
Date30 April 1997
Docket NumberLTA/97/5384/J

[1997] EWCA Civ J0430-17

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

(MR JUSTICE MOSES)

Royal Courts of Justice

Strand

London WC2

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Evans

Lord Justice Schiemann

LTA/97/5384/J

In the matter of an Application for Judicial Review

Regina
and
The Secretary of State for the Home Department
Immigration Officer, Waterloo International Station
Ex Parte Gulay Canbolat

MR MANJIT GILL and MR ASOKA DIAS (Instructed by Bluett & Co, London N9 9DU) appeared on behalf of the Applicant.

MR D PANNICK QC and MR M SHAW (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.

THE MASTER OF THE ROLLS
1

This is the judgment of the Court.

2

It relates to a decision of the Divisional Court (Lord Bingham L.C.J. and Moses J) of the 14th February 1997. In the Divisional Court Lord Bingham LCJ gave the judgment of the Court. He dismissed an application for judicial review by Gulay Canbolat a 24 year old Turkish citizen of Kurdish origin. The application challenges : (a) the decision of the Secretary of State for the Home Department of the 1st September 1996 authorising her removal from the United Kingdom to France and (b) the decision of the immigration officer refusing her leave to enter the United Kingdom.

3

The applicant required leave to appeal and at the conclusion of the hearing before us having considered the able argument advanced on her behalf by Mr Manjit S. Gill we granted her leave to appeal.

4

On the appeal Mr Gill has not canvassed all the issues which were before the Divisional Court. He has confined the argument to two issues namely :

(1) Was the Secretary of State's decision to issue a certificate under section 2(2) of the Asylum and Immigration Act 1996 ("the 1996 Act") one to which he was not entitled to come. The certificate was to the effect that the applicant should be returned immediately to France where her claim to asylum would be heard.

(2) Does the failure of the United Kingdom government to communicate and consult with the Commission of the European Community and with Member States as required by the Commission's decision of the 8th June 1988 (88/384/EEC) issued pursuant to Article 118 of the EC Treaty mean that the 1996 Act has been brought into force in violation of EC law?

5

Background

6

Before turning to consider those issues, it is only necessary to set out a brief outline of the applicants personal circumstances. She arrived in this country on the 31st August 1996 having travelled by Eurostar from Paris. On arrival she claimed political asylum. She was granted temporary leave to enter and has remained here ever since. A decision of the immigration officer as to her removal has been stayed pending the outcome of her application for judicial review.

7

Because of the time which has elapsed since her arrival in this country, it is accepted on behalf of the Home Secretary that the applicant cannot now be removed from this country until her application for asylum is heard and determined on its merits. This means that her appeal is being pursued as a matter of principle and not because she will be affected personally by our decision. Despite this we considered it right to express our views on the issues which have been raised before us because the issues are of general importance and their resolution could assist decision makers and courts faced with similar situations.

8

The relevant legislation

9

The issues arise because both this country and France are parties to the 1951 Geneva Convention (to be read with the New York Protocol of 1967) on the status of refugees. The critical provision of the convention is Article 33 which provides :

" Prohibition of Expulsion or Return ("Refoulement")

1 No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

10

Effect is given to the Convention in the domestic law of this country by the Asylum and Immigration Appeals Act 1993 (the "1993 Act"). Section 2 of that Act provides :

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

11

As indicated by its heading "Protection of claimants from deportation etc…" section 6 of the 1993 Act protects asylum seekers from deportation. The section reads :

"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

12

A person in the position of the appellant who is refused leave to enter had a right of appeal to a special adjudicator under section 8 (1) of the 1993 Act. The ground of appeal that is specified in the section is "that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention". This ground of appeal was more restricted than that under the 1971 Act which it replaced.

13

Paragraph 5 of schedule 2 to the 1993 Act provided :

"(1) Subject to sub-paragraph (2) below, this paragraph applies to an appeal by a person under subsection (1) … of section 8 of this Act if the Secretary of State has certified that, in his opinion, the persons claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation …

(3) For the purposes of this paragraph a claim is without foundation if (and only if) —

(a) It does not raise any issue as to the United Kingdom's obligations under the Convention ; or

(b) It is otherwise frivolous or vexatious".

14

Pending the determination of such an appeal, an applicant for asylum could not be removed from the United Kingdom. (paragraphs 8 and 9 of schedule 2 of the 1993 Act).

15

Further restrictions on the rights of appeal were introduced by the Asylum and Immigration Act 1996 ("the 1996 Act"). The objectives of that Act include the strengthening of the procedures for dealing with claims for asylum in order to expedite the determination of those claims and appeals from them. Among those asylum seekers to which the 1996 Act applies are asylum seekers who have arrived in this country from a "safe country". That is a country other than a country where the asylum seeker fears he will be persecuted. Where that is the situation, it is accepted that it would not contravene the Convention for this country to return the asylum seeker to the safe country from which the asylum seeker had come without having to investigate the merits of the claim for asylum. This however is subject to an important proviso and that is that the safe country is not one where the asylum seeker would be persecuted and is not one from which he would be returned to the country where he alleges he would be persecuted without the merits of his claim for asylum being properly investigated or in breach of Article 33 of the Convention.

16

The decisions of the Secretary of State and of the immigration officer which the appellant seeks to challenge by way of judicial review are decisions which were intended to achieve her removal from this country to what was said to be a safe country namely France. The 1996 Act came into force on 1 September 1996 which was the same day the Secretary of State issued the certificate. The following day the immigration officer reached his decision. The provisions of the 1996 Act which applied to the appellant are sections 2 and 3. Section 2 provides:

"(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc) 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 being 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.

(3) This subsection applies to any country or territory which is or forms part of a member State, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument.

(7) In this section "claim for asylum" and "the Convention" have the same meaning as in the 1993 Act."

17

The reference in section 2(3) to a "member State" refers to member States of the European Union and therefore applies to France.

18

Section 3 of the 1996 Act, so far as relevant states:

"(1) Where a certificate has been issued under section 2(1) above in respect of any person —

(a) that person may appeal against the certificate to a special adjudicator on the ground that any of the conditions mentioned in section 2(2) above was not fulfilled when the certificate was issued, or has since ceased to be fulfilled ;...

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