R v Secretary of State for the Home Department, ex parte Demiraj (Besnik)
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1997 |
| Date | 05 December 1997 |
| Court | Queen's Bench Division |
Queen's Bench Division
Collins J
M S Gill and Miss U Miszkiel for the applicants
N Pleming QC and Miss L Giovannetti for the respondent
Cases referred to in the judgment:
Immigration and Naturalization Service v Cardoza-Fonseca [1986] 480 US 421.
Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.
Gulay Canbolat v Secretary of State for the Home Department [1997] Imm AR 442.
Mohammed Kerrouche v Secretary of State for the Home Department [1997] Imm AR 610.
Gashi and Nikshiqi v Secretary of State for the Home Department [1997] INLR 96.
Asylum — ethnic Albanians from Kosovo — applications for asylum made in Germany — dismissed after applicants moved to United Kingdom — applications for asylum refused by Secretary of State — decision to remove applicants to Germany as safe third country — assertion that Germany's procedures imposed too high a burden of proof on applicants — whether following Gashi unreasonable for Secretary of State to return applicants to Germany — whether Gashi embodied the only acceptable interpretation of the Convention. Asylum and Immigration Act 1996 s.2(2): HC 395 para. 345: Dublin Convention art. 3(5).
The applicants for judicial review were ethnic Albanians from Kosovo. They had applied for asylum in the United Kingdom: the Secretary of State had decided to return them to Germany whence they had come and where they had applied for asylum. Their applications in Germany had been refused.
It was contended that the standard of proof required by the German authorities to demonstrate a well-founded fear of persecution was too high and certainly higher than that applied in the United Kingdom. Following Gashi it had been established that ethnic Albanians from Kosovo had a well-founded fear of persecution and it was unreasonable of the Secretary of State to return them to Germany where in the events which had happened they could not, absent fresh relevant material, re-open their claims. The court was invited to endorse the view that the Tribunal decision in Gashi was the only reasonable construction of the relevant provisions of the Convention.
Held:
1. There was no universally accepted correct approach to the resolution of the question whether an asylum seeker had established his claim under the Convention: various signatories might properly differ in the way in which they required an asylum seeker to establish his claim.
2. The Tribunal which decided Gashi could have rationally concluded that ethnic Albanians in Kosovo as such had a well-founded fear of harassment and discrimination which stopped short of persecution.
3. That the Germany authorities and courts had rejected the applicants' claims for asylum did not itself mean that the Secretary of State could not certify the cases under section 2(2) of the 1996 Act. That would only be the case if any difference in the construction of the Convention meant that the Secretary of State could not properly be satisfied that the applicants would be returned to Yugoslavia otherwise than in accordance with the Convention.
4. The Secretary of State was entitled, having regard to the advice he had received, to conclude that the German authorities observed proper procedures and they reflected an approach within the range of possible interpretations of the Convention.
5. The Secretary of State was entitled to apply section 2(2) of the Act to a case on the basis of his knowledge of the usual practices of the government in question unless some material were put before him that required him to make further enquiries.
Collins J: Each of the applicants, whose cases have been heard together, is an ethnic Albanian who lived in Kosovo province in the Federal Republic of Yugoslavia. Each left Kosovo and went to Germany, Mr Demiraj in October 1996 and Mr Ethemi in November 1996. Each claimed asylum in Germany, asserting that he had a well-founded fear of persecution on the ground of his ethnicity, and was granted a temporary residence permit while his claim was investigated. When the applications came before me on 16 October 1997 it was assumed that the claims in Germany had not been finally determined. Certainly, the respondent seems to have made no specific enquiries of the German authorities. For this and other reasons, the applications were adjourned and came back before me on 5 December 1997. It now appears that Mr Demiraj claimed asylum on 29 October 1996 and that his claim was refused on 31 October 1996. Mr Ethemi made his claim on 21 November 1996: it was refused on 25 November 1996. Each lodged an appeal against the refusal and was given one month to submit representations. Neither made any representations and so each applicant's appeal has been dismissed since his arrival in the United Kingdom. Thus the position is that each applicant has had his claim in Germany rejected and cannot (in the absence of any fresh material) reopen it.
The basis of the applicants' cases is that they are entitled to asylum because they are ethnic Albanians from Kosovo and, as such, have a well-founded fear of persecution. Accordingly, they have through their solicitors refused to permit the German authorities to disclose to the respondent the grounds upon which they claimed asylum. When they arrived in the country, there was a very brief interview because, since it was apparent that they had applied for asylum in Germany, the respondent had to consider whether to return them to Germany which was regarded as a safe country. The respondent was applying rule 345 of HC 395 which reads:—
‘If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the [Geneva] Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol…’
Section 2(1) of the Asylum and Immigration Act 1996 enables the Secretary of State to certify that ‘in his opinion the conditions mentioned in subsection (2)…are fulfilled’ whereupon the applicant can be removed to a third country. The conditions in section 2(2) are:—
...‘(a) that the person is not a national or citizen of the country to which he is to be sent;
(b) that his life and liberty would not be threatened in that country…by reason of his race, religion, nationality, membership of a particular social group or political opinion; and
(c) that the government of that country would not send him to another country or territory otherwise than in accordance with the Convention.’
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