Laftaly v. Secretary of State for the Home Department

Publisher	United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority
Author	Immigration Appeal Tribunal
Publication Date	14 December 1992
Citation / Document Symbol	[1993] Imm AR 284
Cite as	Laftaly v. Secretary of State for the Home Department, [1993] Imm AR 284, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 14 December 1992, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6d38.html [accessed 4 November 2019]
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LAFTALY v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal

[1993] Imm AR 284

Hearing Date: 14 December 1992

14 December 1992

Index Terms:

Political asylum -- applicant refused variation of leave on the basis of a claim for asylum -- granted leave exceptionally to remain in the United Kingdom -- whether in those circumstances an applicant had a right of appeal against the refusal of variation of leave on the basis of his claim for asylum -- whether any such appeal in the circumstances would inevitably fail -- "refugee status" and "exceptional leave to remain" distinguished -- the advantages of refugee status. Immigration Act 1971 (as amended) ss 3(1)(b), 19, 33(5): HC 251 paras 98, 140: United Nations Convention relating to the status of refugees 1951 (Protocol 1967) arts 8, 24(2), 24(3), 25, 28, 32.3.

Held:

The appellant was a citizen of Iraq. He had applied for variation of leave on the basis of a claim for asylum. The Secretary of State refused that application but granted the appellant exceptional limited leave to remain in the United Kingdom. The appellant appealed against the refusal to grant him variation of leave on the basis of his claim for asylum. The adjudicator dismissed his appeal. He did not consider the merits of the case. He concluded that the appellant had secured, under the rules, in practical terms, what he had sought: there was no question of his being obliged, at the material date, to go to a country where he had a well-founded fear of persecution.

The appellant appealed to the Tribunal. His case, by consent, was heard with that of Ali Aygun in which the issue was the same. The Tribunal heard submissions by the representatives for both appellants.

Held

1. Under the rules a person might apply for variation of leave to remain in the United Kingdom on the ground that if required to leave he would have to go to a country to which he was unwilling to go owing to a well-founded fear of being persecuted.

2. It followed that an appeal lay, under section 19 of the 1971 Act, against a refusal of such an application. An adjudicator was obliged to consider whether the refusal was correct and in accordance with the terms of the rules.

3. Such an application for variation of leave might be made at any time during the currency of an appellant's leave to remain in the United Kingdom and would be tested against the circumstances obtaining at the material date.

4. It was incorrect to conclude that a person granted exceptional leave to remain was in the same position as a person accorded refugee status. A person recognised as a refugee secured a number of additional advantages, as set out in the Convention.

5. The appeal would be allowed to the extent that it would be remitted to the adjudicator for determination on the merits.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Ibrahim Kaygusuz [1991] Imm AR 300.

Shafiq (unreported) (3279).

Aygun (unreported) (9662).

Counsel:

T Jorro of the New Refugee Unit for the appellant Laftaly; L Grant for the appellant Aygun; T Wilkie for the respondent; A Fortin for the United Nations High Commissioner for Regugees, intervening

PANEL: Professor DC Jackson (Vice-President), Major D Francombe, AA Lloyd Esq JP

Judgment One:

THE TRIBUNAL: The appellant, a citizen of Iraq, appeals against the decision of an adjudicator (Mr EJT Housden) dismissing his appeal against the refusal to vary his leave on the basis of asylum. This case was heard together with that of Ali Aygun (TH/1 15/92) as both cases raised the same point and appearing for the appellant in that case was Mr L Grant of Simons Muirhead and Burton: Mr Grant made his representations together with those of the other representatives.

The issue before the Tribunal is whether, when an applicant who has leave to be in this country is on application refused variation on the basis of asylum but granted exceptional leave to remain, he can succeed in any appeal from the refusal of asylum. It is common ground between the parties that:

i The refusal of asylum is a refusal to vary leave and attracts a right of appeal in accordance with section 14(1) of the Immigration Act 1971.

ii In considering that appeal the appellate authority must exercise its jurisdiction in accordance with sections 19 and 20 of the Immigration Act 1971 and, in particular, consider whether the decision "was not in accordance with the law or with any immigration rules applicable to the case" (section 19(1)(a)(i));

iii The immigration rules applicable to the case are to be found in HC 251 paragraphs 98 and 140.

These paragraphs read:

"98. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

-- "140. A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances."

The adjudicator in a comprehensive determination concluded that, although there was a right of appeal from the refusal, the appeal could not succeed. The adjudicator set out his reasons:

"(1) A disappointed applicant for asylum in the United Kingdom has a right of appeal against the refusal of that application on the basis that it is tacitly understood that he has applied for leave to remain in the United Kingdom. His right of appeal is therefore in terms of section 14 of the Immigration Act, 1971.

(2) A person who has asylum is in no better a practical position as regards protection from expulsion from this country than someone who has exceptional leave to remain here. The latter may appeal against the refusal of further exceptional leave, under section 14, and in the extreme event of a decision to make a deportation order, he may appeal under section 15.

(3) Both asylum and exceptional leave lead to the same end, that is indefinite leave to remain here. In both instances limited leave is given initially.

(4) In being granted exceptional leave rather than asylum Mr Laftaly was not denied any consequences of asylum to which he was entitled under our domestic law or in terms of the 1951 Convention.

(5) At the date of the Secretary of State's refusal of his second application for asylum Mr Laftaly was at no risk of persecution. He was here, with leave, and the overwhelming probability was that he would not be required to return to Iraq.

(6) The courts of this country do not decide hypothetical questions. The appropriate point at which a judicial assessment of Mr Laftaly's risk of persecution should be made would be if he had been refused leave to remain here or was the subject of a deportation decision.

(7) If I were to allow this appeal, what would Mr Laftaly gain from that? He has all that he is legally entitled to. The Secretary of State would not be obliged to give him anything which he does not have already. I cannot, as Mr Jorro concedes, declare Mr Laftaly a refugee or give directions that he be granted limited or indefinite leave to remain here.

(8) It would be illogical and unfair for someone in Mr Laftaly's position -- he being already in a 'safe' country -- to be given better treatment than someone who is reasonably expected to go to another 'safe' country and is properly refused asylum here on that basis."

The adjudicator concluded his determination:

"Mr Laftaly asked for asylum in the United Kingdom. That is, in effect, what he has been given. He is legally entitled to no more than he already has, whatever the actual practice of the Government in relation to refugees. Such practice may aptly be compared with exceptional leave. As the Secretary of State gave Mr Laftaly what he was entitled to under the rule, the Secretary of

State's decision must have been in accordance with the law and immigration rules applicable to this case. I therefore dismiss this appeal, as provided for in section 19 of the Immigration Act 1971."

In the course of his determination the adjudicator referred to views held amongst adjudicators in respect of whether a person in the position of the applicant had a "full and meaningful right of appeal" and, in particular, referred to the views of one of his fellow adjudicators. In our view, it would be entirely proper to cite particular decisions which were at variance with one another, but we have considerable doubts as to whether an adjudicator should in a decision record views of adjudicators which have not yet appeared in other decisions and which may well change in the light of representations made to them when considering cases. Even if it may not be entirely undesirable to indicate that there is a difference of views amongst adjudicators, in our opinion it is wholly inappropriate to refer to an adjudicator by name.

In reaching his conclusions the adjudicator referred in some detail to the High Court decision in R v Secretary of State for the Home Department ex parte Kaygusuz [1991] Imm AR 300 and that of the Tribunal in Shafiq (3279). It is as well to deal at this stage with the Tribunal's view of those two decisions.

R v Secretary of State ex parte Kaygusuz

In this case the issue was whether, as to one decision, leave granted to move for judicial review should be set aside and, as to another, leave should be granted. Of the two decisions in regard to the applicant, the first was taken on 5 March 1990 -- in which, in the court's words, the Secretary of State refused "to regard him as qualified for political asylum after his arrival in the United Kingdom." The second decision was on 2 October 1990 which, again in the court's words, apparently confirmed the earlier decision and granted him leave to enter the country for 12 months. This decision, it is said, was made under the prerogative power of the Secretary of State maintained by section 33(5) of the Immigration Act 1971.

In approaching the matter Auld J expressed the view that, although the legal root of the exceptional leave to enter was different from the grant of leave to enter under the provisions of the Immigration Act, the effect was the same in that Mr Kaygusuz "has now had leave to enter, albeit limited". The learned judge concluded that once the Secretary of State had given his decision and granted exceptional leave to enter, there was no basis for judicial review of either decision. Auld J continued:

"The application by Mr Kaygusuz for the recognition of the status as a political refugee was a means to an end, namely, to obtain leave to enter. Although it is limited, he now has leave to enter the country and to remain here, and there is nothing to which his application for political asylum can attach, at least in relation to that initial decision."

In respect of the later decision (which confirmed the earlier in the refusal to recognise the status as a political refugee) the applicant, said the judge, could re-apply for that recognition in the context of an application for leave to remain. Should he be unsuccessful, there were wider arguments available to him under the then applicable appeals procedure than were available on judicial review in the High Court.

The leave to move for judicial review of the earlier decision was set aside and leave to move in respect of the later decision refused. The learned judge said that the applicant's main concern at the stage of the proceedings before the court was to obtain declaratory relief -- a decision that he is a political refugee entitled to asylum. The judge continued:

"In my view, this is not a case in which the Divisional Court would be prepared to consider the grant of declaratory relief; and I ask rhetorically: what would Mr Gill do with a decision from the Divisional Court simply quashing either decision of the Secretary of State? He would be left to reopen the matter through the machinery available in the same way as he would if he were to apply for leave to remain under section 3(1)(b) on the ground that he is entitled to political asylum."

It is to be noted that the Kaygusuz case was concerned with leave to enter, whereas the issue before us is concerned with leave to remain. Secondly, and more fundamentally, Auld J was concerned with discretionary relief on judicial review. It may be, with respect, arguable that an application for political asylum is not purely a means to obtaining leave to enter, but a ground for seeking it, and that a refusal on that ground may raise an arguable point of law. However, it is clear that the view of the learned judge was that there was nothing to be gained for the applicant as the matter stood at the date of the hearing. It has to be remembered that the hearing was on 22 February 1991, and that by that time (and indeed before that time) Mr Kaygusuz could have made an application for leave to remain on the basis of political asylum and, in the opinion of Auld J, that would have triggered the appellate machinery.

We agree with the adjudicator that it is not entirely clear from the Kaygusuz decision as to whether either Auld J or counsel for the Secretary of State had in mind the circumstances of the present case ie where leave to remain on the basis of political asylum is refused, but further exceptional leave is granted. As a consequence of this and the ratio of the decision, the Kaygusuz case is not directed to the issue which was before the adjudicator and is before us.

The Shafiq decision

In that case the applicant applied for leave to enter on the basis of asylum. That was refused, but leave to enter for 12 months was granted exceptionally.

During the currency of that leave, application was made for leave to remain on the basis of asylum. Again this was refused, but again exceptional leave was granted. One of the points taken by the Secretary of State was to argue that as the applicant was granted leave outside the rules of a duration which he would have been granted within the rules, no right of appeal lay against the refusal to grant asylum. In rejecting this argument, the Tribunal held, first, that the right of appeal against a refusal to vary was not simply a right against duration of the leave or the conditions imposed on it. In relation to this point, the Tribunal stressed that the category in which leave was granted on occasion carries entitlements which leave granted to a different category would not -- as for example, the ability of a person admitted for a temporary purpose to apply for settlement. Secondly, the Tribunal said in relation to the then applicable immigration rule (that equivalent to paragraph 140 of HC 251):

"As we have said the respondent applied for a variation of leave on the basis of asylum. HC 66 paragraph 134 provides for such an application. The rule is not limited to applications made when the applicant is required to leave. It seems to us that within the context of variation of leave the rule permits of applications at any time, the applicant having to establish that if he was required to leave he would have to return to a country in which he fears persecution, those fears being well founded. Paragraph 134 therefore provides a basis for an application to vary leave to remain and in order to evaluate it an adjudicator necessarily must pronounce on whether the basis is established ie whether the plea for asylum is established."

Thirdly, the Tribunal referred to matters put before it by the High Commissioner for Refugees in stressing the advantages that recognition of the status of political asylum would have over the grant of exceptional leave.

The adjudicator in this case examined in some detail the question of whether a person granted exceptional leave has the same advantages as has a person granted leave on the basis of asylum. In particular, the adjudicator concluded:

i There was no obligation under the Refugee Convention to admit to this country the spouse and children of the refugee and, therefore, a person granted exceptional leave was in no worse position in this regard than the asylum seeker;

ii Any distinction based on the obtaining of travel documents was more apparent than real, it being the adjudicator's understanding that the Home Office would issue a temporary travel document to those granted exceptional leave;

iii There was no obligation on the Convention to provide those given asylum with cheaper education than is available to "aliens generally" -- and any practice that does provide such better education is a matter for the Government of the United Kingdom;

iv It was "no more probable that someone with exceptional leave would be required to depart from the United Kingdom than someone who had asylum here".

The adjudicator concluded that there was an air of unreality about an asylum appeal in circumstances in which the applicant is never likely to be in a position to suffer persecution in his home country. In the adjudicator's view, the chances of persecution should be assessed "when he is about to be thrown out of the United Kingdom -- either as a result of refusal of further exceptional leave or after a decision to deport him". The adjudicator then dealt with the applicable immigration rule, saying:

"It might be argued that the words of the rule "if he were required to leave he would have to go to a country to which he is unwilling to go" introduce the hypothetical, but what is asylum? It is a safe haven. If he has permission to remain here, he has what he asked for. The words quoted above apply obviously to those who may be required to leave, not so obviously to those who will not. It is necessary in the cases of those refused even exceptional leave to consider a hypothetical possibility that the applicant might be returned to his home country, because there is no other rational basis on which to assess his prospects. It is too late to consider them when he has been shot. Such a hypothetical consideration is not necessary in the case of someone with exceptional leave."

Conclusions

In our view, the issue before the adjudicator and before us is essentially simple and was, with respect, made perfectly clear in Shafiq. It seems to us, again with respect, that the adjudicator strayed from the issue of whether the decision was in accordance with the applicable immigration rule -- and did so in two respects. First, there is a confusion between the framework of the rules and the right of appeal and, secondly, the Convention obligations of the United Kingdom and the provisions of the rules. Central to both aspects is the wording of paragraph 140 read, as Mr Grant said, with paragraph 98.

Paragraph 140 provides a clear basis for application for variation of leave ie asylum on the ground that if required to leave the applicant would have to go to a country of persecution. If that application is refused, it follows from section 19 of the Immigration Act 1971 that an appeal lies and an adjudicator must adjudge whether the refusal is correct in the terms of the rule. There is nothing in the rule to justify any limitation to liability to removal, a conclusion underlined by the inclusion of "asylum" paragraphs in the rules relating to leave to enter and deportation.

It seems to us that the rule sensibly recognises that an individual may, at any stage during his leave to remain in this country, apply for further leave on the basis of the obligations accepted by the United Kingdom in relation to the Refugee Convention. This enables the position of an applicant to be tested at any date against those obligations and to receive the protection which ensues from such recognition.

Secondly, it is important to stress that the appellate authorities' obligation to consider the principles of the Refugee Convention do not stem directly from the Convention, but through the Convention as it is brought into English law ie through the immigration rules. If the Convention obligation on the United Kingdom is restricted to the non-return of a person who had suffered persecution to the country where he would suffer it, clearly the grant of leave to remain in this country indicates that that obligation is being carried out. However, as we have said, the question for the appellate authority is not whether at the date of decision the applicant is being granted "asylum" in that sense, but whether at the date of decision, if the applicant were required to leave, he would have to go to a country of persecution.

If it be right, as the adjudicator apparently concluded, that the grant of exceptional leave to remain was no different from an applicant's point of view to the grant of asylum, there would be no point to paragraph 140, no point in the right of appeal and no point in the expenditure of time, money and concern in arguing the issue. However, with all respect to the adjudicator, it appears to us beyond doubt that the grant of exceptional leave is not to be equated with the grant of asylum. Otherwise there would be no point in making the distinction in the first place -- the exceptional leave being granted on the basis that the applicant has not established his claim to asylum. Mr Fortin submitted for us a list of advantages under the Convention which put refugees in a category apart from others subject to immigration control in the United Kingdom. These concern exemption from exceptional measures taken against person, property or interests (article 8), the right to compensation for the death of a refugee (article 24(2)), the entitlement to benefits of agreements concluded between contracting States in regard to Social Security (article 24(3)), rights concerning documents and certifications (article 25), the entitlement to travel documents (article 28) and the right not to be expelled save on the grounds of national security or public order (article 32).

Mr Wilkie reminded us that, although the Convention may confer rights upon a refugee or a person granted asylum, it may be that the national state will confer the same rights on a category of persons who do not qualify under the Convention. In other words, in making any comparison we should not confine ourselves to a comparison of rights conferred by the Convention to those outside, but consider the rights actually enjoyed.

We agree with Mr Wilkie's comment. However, it is important to recognise that much as with a person within the ambit of European law, a person recognised as falling within the ambit of the Refugee Convention has certain rights stemming (through English law) from that Convention which may or may not be conferred solely as a matter of domestic law on others. The rights of a refugee are therefore securely rooted in the Convention while the Convention remains a part of English law, whereas the rights of others are rooted simply in the application of statutes, immigration rules and discretion. Mr Jorro emphasised that exceptional leave was, as its name implied, leave granted outside the rules and, therefore, any benefits and advantages which may attach to it are matters solely for the discretion of the Secretary of State controlled only by obligations relating to fairness and procedural propriety. There is, therefore, in our view, a clear general advantage to an applicant in obtaining recognition of his rights under the Refugee Convention.

Further, as Mr Wilkie agreed, there are in practice differences in the leave granted as between "asylum" and "exceptional leave"-first, going to duration and, secondly, to the ability to obtain entry for a family. These are differences in domestic law and show that an appeal against the refusal of asylum, although granted exceptional leave, has substantial implications in addition to the allaying of any anxiety which may follow from the refusal of asylum. This simply underlines the good sense of the obligation imposed by paragraph 140 in ensuring that applications based on the Refugee Convention may be considered in substance prior to a date when a person is under actual threat of removal.

We add only a comment in respect of the adjudicator's point that it would be illogical and unfair for someone in Mr Laftaly's position to be given better treatment than someone whose application is not considered on the basis that he has arrived from a safe third country. The first response to this is that central to this determination ie that the rules require the Secretary of State to consider an application based on the Refugee Convention even though there is no immediate danger of the applicant being sent to the country of persecution. Secondly, it does not seem to us, with respect, to be illogical or unfair to return a person to the country from which he arrived if that country is "safe", but to consider an asylum plea in this country (which is also safe). On the contrary, the return and the consideration are entirely consistent.

The principle of return to a safe country is that it is the responsibility of the first "safe" country to consider any asylum application, the return therefore having nothing to do with the actual consideration of the application. In the present proceedings we are concerned with the consideration of an application by the United Kingdom in accordance with its implementation of the Refugee Convention. As we have said, we find the procedure to be entirely sensible.

For the reasons we have set out, therefore, we disagree with the adjudicator's conclusions. The merits of the case are yet to be decided, and Mr Jorro and Mr Wilkie were content that the matter be remitted to Mr Housden for a decision. The appeal is allowed insofar as we declare that it was for the adjudicator to decide whether the decision appealed from was in accordance with the immigration rules ie that if he were required to leave, he would have a claim to asylum. We direct that the case be remitted to the adjudicator to decide the merits of the asylum application.

DISPOSITION:

Appeal remitted to adjudicator

SOLICITORS:

Simons, Muirhead & Burton, London, W1