R v Secretary of State for the Home Department ex parte Besnik Gashi [QBD]
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1998 |
| Date | 06 November 1998 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Divisional Court
Brooke LJ, Sedley J
M S Gill for the applicant
Miss L Giovannetti for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569: [1997] Imm AR 442.
Anthonypillai Robinson v Secretary of State for the Home Department [1997] Imm AR 568.
Gashi and Nikshiqi v Secretary of State for the Home Department [1997] INLR 96.
R v Secretary of State for the Home Department ex parte Besnik Demiraj and Astrit Ethemi [1998] Imm AR 147.
Thayaparam Iyadurai v Secretary of State for the Home Department [1998] Imm AR 470.
Asylum certified case ethnic Albanian from Kosovo whether Secretary of State entitled to conclude Germany was a safe third country to which the applicant could be returned whether German courts had acceptable approach to the return of ethnic Albanians to Kosovo. Immigration and Asylum Act 1996 s. 2: HC 395 paragraph 345.
The applicant seeking judicial review was an ethnic Albanian from Kosovo. He had sought asylum in the United Kingdom after having been refused asylum in Germany. The Secretary of State had decided to return the applicant to Germany.
Counsel once again sought to challenge the conclusion of the Secretary of State that Germany was a safe third country. He relied on arguments already put forward in ex parte Iyadurai. He sought to show that in relation to ethnic Albanians from Kosovo, German courts were returning failed asylum seekers to Kosovo. In assessing such applications it was contended that the German courts did not accept that incidents of harassment might cumulatively amount to persecution.
Held:
1. It was apparent that the German courts took into account all the facts in individual cases and their approach to cumulative persecution was not flawed but did reflect the requirements of the Convention.
2. The Secretary of State had taken all necessary and reasonable steps to keep himself informed of the approach to asylum claims from ethnic Albanians from Kosovo by the German courts.
3. It was manifest that the German courts approached the question of internal flight in the same way as the Court of Appeal in Robinson.
4. The Secretary of State's decision to certify in this case was not Wednesbury unreasonable.
Brooke LJ: This is an application by Besnik Gashi for judicial review of a decision given by the Secretary of State for the Home Department, made on 16 March 1998 and given to him on 7 April 1998, to issue a certificate under section 2 of the Asylum and Immigration Act 1996 (the 1996 Act) authorising his removal to Germany, and a consequential decision by an immigration officer, also dated 7 April 1998, refusing him leave to enter and cancelling his earlier grant of leave to enter, and setting removal directions.
Section 2 of the 1996 Act is intended, as Lord Woolf MR pointed out in ex parte Iyadurai [1998] Imm AR 470, 472, to enable the Secretary of State to remove expeditiously from this country claimants for asylum who have arrived in this country from a safe country.
Section 2(1)(a) of the Act provides that the Secretary of State may remove an asylum claimant from the United Kingdom if:
The Secretary of State has certified that in his opinion the conditions mentioned in subsection (2) are fulfilled.
The relevant conditions set out in section 2(2) 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 [that is, the Geneva Convention for the Protection of Refugees 1951].
The dispute in this case, as in ex parte Iyadurai, revolves around condition (c). This country is currently adopting a policy of not sending Kosovan ethnic Albanians back to Kosovo, and the United Nations High Commission for Refugees (UNHCR) has since March 1998 been advising governments not to return unsuccessful Kosovan asylum seekers to the Federal Republic of Yugoslavia (FRY). Notwithstanding this advice, the government of Germany has indicated that a formal ban on all such deportations is out of the question, and when these proceedings were commenced in mid-April, eight of the 16 federal German states were still sending asylum seekers back to Kosovo. The other eight were adopting a wait and see policy.
Mr Gashi is now aged 30. He is an ethnic Albanian refugee from the Kosovo region of FRY. He fled from his country and travelled over land to Germany two years ago, on 7 October 1996, where he claimed asylum immediately. Although his asylum application was dismissed later that month, and he received notice of the dismissal of his appeal in June 1997, he stayed in Germany until December 1997, with a grant of temporary admission being made in his favour from month to month, until on 1 December 1997 he received notification that he was required to leave Germany by 1 January 1998 at the very latest. Since he did not wish to return to FRY, where the German authorities intended to send him, he came to this country instead, arriving at Waterloo International station on 22 December 1997. He immediately claimed asylum, and what is called a Dublin Screening Interview was conducted. He was then granted temporary admission. He did not disclose to the immigration authorities at Waterloo that he had already been in Germany and had claimed asylum there.
On 18 February 1998 the Secretary of State made a formal transfer of responsibility request to the German authorities pursuant to the provisions of the Dublin Convention, and the German authorities duly accepted responsibility on 8 March 1998. On 16 March the Secretary of State signed the certificate under section 2 of the 1996 Act which is impugned in these proceedings, and on 7 April Mr Gashi was told that the Secretary of State had refused his claim for asylum without considering its substance pursuant to rule 345 of HC 395 (as amended) and had certified that the conditions in section 2(2) of the 1996 Act were satisfied. Removal directions were set for 14 April 1998, but these proceedings were then commenced, and on 8 June 1998 Sedley J granted the applicant leave to apply for judicial review.
Evidence has been given to the court in response to Mr Gashi's application by Mr Taylor, who is in charge of the Third Country Unit of the Asylum Directorate in the Home Office. The main function of this Directorate is to determine whether to issue section 2 certificates on behalf of the Secretary of State. Mr Taylor tells us that the Secretary of State has done a great deal of work to familiarise himself with German law and practice in relation to asylum seekers. This is an ongoing task, because it is appreciated that there is a need to remain informed about any changes in German law and practice generally, and also in relation to the German response to specific developments in countries from which people may be seeking asylum.
The Directorate's starting point is that Germany is generally considered a safe third country. It is a signatory to the 1951 Geneva Convention and its 1967 Protocol, and the Secretary of State considers that it has reaffirmed its commitment to abide by its international obligations in a number of other international agreements, including the 1995 Resolution of the European Union on Minimum Guarantees for Asylum Procedures. Germany is regarded as a highly developed Western European country with a long track record of providing protection to refugees. Its recognition rate for asylum seekers is said to compare favourably with that recorded in many other European countries. One of the sources of the Secretary of State's knowledge of relevant German law and practise is the chapter on Germany in a book called A summary description of asylum procedures in Northern Europe, North America and Australia.
Mr Taylor tells us that the Secretary of State is satisfied that German laws and procedures make proper provision for handling asylum application within the requirements of the Convention, and that these procedures are duly applied in practice. He is not aware of any substantive evidence that the German authorities act in breach of these laws and procedures. On the contrary, he does not know of a single instance where a special adjudicator has expressed concern about the standard of consideration of substantive asylum applications in Germany, and the courts in this country have consistently rejected challenges to the Secretary of State's view that Germany is safe, both in relation to specific criticisms (such as the standard of proof used in German cases) and generally.
While the Secretary of State is aware that in 1996 a division of the Immigration Appeal Tribunal considered that ethnic Albanians were at risk in Kosovo, he has taken the view that this was a finding of fact on the evidence before that Tribunal at that date of that hearing, and that it should not be treated as having any general application of a binding nature. In any event, he considers that it is open to different states to reach different conclusions as to whether or not the treatment and circumstances of an individual asylum seeker amounts to persecution within the meaning of the Convention.
The Secretary of State has been monitoring the situation in Kosovo on a continuing basis, and he is aware that the German authorities are doing likewise. He was satisfied in early August 1998, the date of Mr Taylor's affirmation, that the situation in Kosovo was then such that the view could be reasonably held that the Serbs were targeting the Kosovo Liberation Army (KLA), both in...
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