Khaboka v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	25 March 1993
Citation / Document Symbol	[1993] Imm AR 484
Cite as	Khaboka v. Secretary of State for the Home Department, [1993] Imm AR 484, United Kingdom: Court of Appeal (England and Wales), 25 March 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6210.html [accessed 5 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

KHABOKA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 484

Hearing Date: 25 March 1993

25 March 1993

Index Terms:

Political asylum -- Zairean national -- arrived in United Kingdom from France after escape to the Congo -- applied for political asylum -- Secretary of State declined to consider the application on the merits -- applicant to be returned to France -- whether unreasonable for Secretary of State to conclude that France was a safe country and that France would observe article 31 of the Convention -- whether adequate reasons given for not accepting reports that suggested that the French authorities had not always observed that article -- the meaning of "refugee". HC 251 para 75: United Nations Convention relating to the status of refugees, 1951 (Protocol 1967) art 31: Handbook on procedures and criteria for determining refugee status, 1979 para 28.

Held:

The applicant was a citizen of Zaire who had arrived in the United Kingdom via the Congo and France. He applied for political asylum. The Secretary of State decided not to consider the case on the merits but to return the applicant to France. An application for judicial review was refused at first instance, and renewed before the Court of Appeal.

Counsel argued that the Secretary of State had been given details of cases in which the French authorities had not observed the provisions of article 31 of the Convention. Penalties for illegal entry into France had been imposed on asylum seekers before their applications had been resolved. Those in detention in France had had difficulties, he asserted, in putting forward their case for asylum. Counsel also argued that there was a danger that France would return the applicant to the Congo without being certain that in turn the Congo would not return him to Zaire. The Secretary of State had been given a report from Amnesty International which supported that contention, and had failed to give full reasons for rejecting it.

Held

1. The court accepted that "refugee" included a bona fide asylum seeker whose application had not yet been determined, but noted the limitations laid down in article 31 of the Convention.

2. It was not possible to say that on the evidence before him the Secretary of State could not reasonably conclude that the French authorities adhered to the clear language of article 31 of the Convention.

3. Likewise the Secretary of State could not be said to have unreasonably concluded that France was a safe country and his reasons as put forward in the decision letter were adequate.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250.

R v Secretary of State for the Home Department ex parte Alimas Khaboka (unreported, QBD, 1 March 1993).

Counsel:

R Scannell for the applicant; D Pannick QC for the respondent.

PANEL: Ralph Gibson, Nolan LJJ, Sir Christopher Slade

Judgment One:

NOLAN LJ: This is a renewed application by Mr Khaboka for leave to move for judicial review. The relief sought in the original Form 86, dated 24 January 1993, was an order of certiorari to quash a decision of the respondent Secretary of State given on 21 January 1993. By that decision the Secretary of State refused the applicant's claim for asylum and ruled that he was returnable to France, from whence he had come to the United Kingdom, under paragraph 8(1)(c) of schedule 2 of the Immigration Act 1971. Those advising the applicant made further representations to the Secretary of State as well as applying for leave to move for judicial review. These representations resulted in a second decision letter, fuller than the first but to the same effect, which was written on 26 February 1993. That was how matters stood when the original application for leave to move came on before McCullough J on 1 March 1993. Following his refusal of leave, yet further representations were made to the Secretary of State which he rejected in a final and brief decision letter of 3 March 1993 reaffirming his original decision. There has been no formal application to amend Form 86, but the matter has been argued before us by Mr Scannell by reference to the second and fuller decision letter written on 26 February 1993.

The background to the matter is this. The applicant was born in Zaire on 1 November 1962. He says that he left Zaire on 15 October 1992 and entered the Congo. From there he travelled to Paris on an Aeroflot flight by way of Moscow. He arrived on 15 December 1992 carrying a Zairean passport which was not his. Thus it is said (and it is not disputed) that he entered France illegally. The following day he took a ferry from Calais to Dover. On arrival in this country he applied for asylum. He says that he did not apply for asylum in France because he feared that the French government supported Zaire and would return him to the Congo from whence he would be returned to Zaire.

His application was referred to the Home Office and to the Refugee Legal Centre. So far as the Home Office was concerned, the reference was under paragraph 75 of the immigration rules, which I read since the challenge sought to be mounted by the applicant involves a consideration of the duty which rested upon the respondent Secretary of State. That paragraph says with reference to asylum:

"Special considerations apply where a person seeking entry claims asylum in the United Kingdom, or where it appears to the immigration officer as a result of information given by that person that he may be eligible for asylum in the United Kingdom. Every such case is to be referred by the immigration officer to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. The Home Office will then consider the case in accordance with the provisions of the Convention and Protocol relating to the Status of Refugees. Asylum will not be refused if the only country to which the person could be removed is one 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."

The approach required of the Home Office, and indeed of the courts, to those seeking asylum has been dealt with in a number of cases of high authority of which it is only necessary to refer to R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514. At page 531E Lord Bridge said this:

"I approach the question raised by the challenge to the Secretary of State's decision on the basis of the law stated earlier in this opinion, viz that the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

I interject to say that in the present case the assertions made do not specify the exact nature of the danger which the applicant faces. The approach adopted by the Secretary of State must however be substantially the same in all cases of applications for asylum. On the following page Lord Bridge dealt with the principles which govern a case such as that before this court when a person arrives from one country claiming to be a refugee from another. He said this:

"My Lords, I can well see that if a person arrives in the United Kingdom from country A claiming to be a refugee from country B, where country A is itself a party to the Convention, there can in the ordinary case be no obligation on the immigration authorities here to investigate the matter. If the person is refused leave to enter the United Kingdom, he will be returned to country A whose responsibility it will be to investigate his claim to refugee status and, if it is establised, to respect it. This is, I take it, in accordance with the 'international practice' of which Mr McDowall speaks in his affidavit. The practice must rest upon the assumption that all countries which adhere to the Convention may be trusted to respect their obligations under it. Upon that hypothesis, it is obviously a sensible practice and nothing I say is intended to question it. It is not, however, difficult to imagine a case where reliance on the international practice would produce the very consequence which the Convention is designed to avoid, ie the return of refugees to the country where they will face the persecution they fear. Suppose it is well known that country A, although a signatory to the Convention, regularly sends back to its totalitarian and oppressive neighbour, country B, those opponents of the regime in country B who are apprehended in country A following their escape across the border. Against that background, if a person arriving in the United Kingdom from country A sought asylum as a refugee from country B, assuming he could establish his well founded fear of persecution there, it would, it seems to me, be as much a breach of article 33 of the Convention to return him to country A as to country B. The one course would effect indirectly, the other directly, the prohibited result, ie his return to the frontiers of territories where his life or freedom would be threatened.

For the sake of illustration, I have necessarily taken cases at opposite ends of the spectrum. In the ordinary case of a person arriving here, from a third country, and claiming asylum as a refugee from the country of his nationality, there will be no ground to apprehend that his removal to the third country whence he comes would put him at risk. But at the other end of the spectrum, the risk may be obvious. Between these two extremes there may be varying degrees of danger that removal to a third country of a person claiming refugee status will result in his return to the country where he fears persecution. If there is some evidence of such a danger, it must be for the Secretary of State to decide as a matter of degree the question whether the danger is sufficiently substantial to involve a potential breach of article 33 of the Convention. If the Secretary of State has asked himself that question and answered it negatively in the light of all relevant evidence, the court cannot interfere."

Mr Scannell for the applicant, no doubt with that passage in mind, has formally refrained from repeating the submission he made to McCullough J which was based on the irrationality, as it was said, of the view formed by the Secretary of State in the light of the evidence put before him.

Mr Scannell has concentrated before us on two particular aspects of the second and fuller decision letter, to which I now turn. The letter on its first page summarises the case put to the Secretary of State for the applicant under four headings. It says:

"You have made a number of points as to why Mr Khaboka should not be returned to France, the most important of which appear to the Secretary of State to be:

(1) If he is returned to France, Mr Khaboka may be returned to Zaire without substantive consideration of his asylum claim, in particular because of his illegal entry into France or because of his failure to apply for asylum in France without delay.

(2) Mr Khaboka may be prosecuted in France for illegal entry into that country, in breach of Article 31 of the Refugee Convention.

(3) The procedures adopted by the French authorities are inadequate to protect the interests of asylum seekers.

(4) Mr Khaboka may be returned by the French authorities to the Congo which is said not to be a safe third country."

The main points contained in that summary, which Mr Scannell accepts and which he wishes to repeat before us, are the second, ie that Mr Khaboka may be prosecuted in France for illegal entry in breach of article 31, and the fourth, that Mr Khobaka may be returned to the Congo. The letter, from which I should read some further extracts before coming to Mr Scannell's submissions, continues on its second page by reciting the fact that the Secretary of State has had the benefit of the opinion of the United Nations High Commissioner for Refugees as to the treatment accorded to asylum seekers if they are returned to France and that he (the Secretary of State) has had the advantages of the experience of his Department at the Foreign Office as to the past practice of France in these matters, which he says "involves consistent compliance with the obligations of France under the Refugee Convention". The Secretary of State continues by saying that he has been informed by the French authorities as follows:

"(1) Each case of an asylum seeker is considered on its individual merits.

(2) In general terms, a national of Zaire would not be returned to the Congo unless the French authorities were satisfied that the Congo is a safe third country in the circumstances of his case (that is he would not be persecuted there or returned to Zaire) and either he came to France via the Congo or he had previously resided in the Congo.

(3) France would not impose any penal measures on an asylum seeker for the manner of his entry into France unless this is consistent with Article 31 of the Convention.

(4) Asylum seekers are given the opportunity to contact a lawyer and UNHCR."

Then at a later point in the letter the Secretary of State comes to the two particular matters to which Mr Scannell has drawn our attention. In paragraph three on page three of the letter the Secretary of State quotes article 31.1 of the Refugee Convention which reads as follows:

"The Contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

The letter continues:

"The Secretary of State has considered the French cases drawn to his attention. They do not show any breach of article 31.1 because in these cases the person concerned was not penalised.

(1) for illegal entry or presence,

(2) when he was a refugee (not just an asylum seeker), as defined in Article 1,

(3) who came directly from a territory where his life or freedom was threatened,

(4) who presented himself without delay to the authorities, and

(5) who showed good cause for his illegal entry or presence.

The Secretary of State considers that any penalising of Mr Khaboka for the manner of his entry into France could only breach article 31 of the Convention if all these conditions were satisfied in his case. The Secretary of State has considered all the material supplied to him but he does not accept that there is any appreciable risk that France would act in breach of its obligations under article 31.1 of the Convention in the case of Mr Khaboka by penalising him if all these conditions were satisfied in his case."

Taking up that passage from the letter in pursuit of the first of his main submissions, Mr Scannell states rightly that the Secretary of State is adopting the attitude that the person concerned in each of the French cases, of which details had been sent to him on behalf of the applicant, was not penalised when he was a refugee as distinct from an asylum seeker as defined in article 1. With reference to the article, Mr Scannell submits that in terms it applies to refugees, and he adds that a refugee is a refugee both before and after his claim for asylum as such may have been considered and accepted. He refers us in this connection to the handbook issued by UNCR at paragraph 28 on page 9 which states:

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognished because he is a refugee."

That, for my part, I would fully accept. It is common sense and a natural reading also of the wording of article 31.1. The term "refugee" means what it says. It will include someone who is only subsequently established as being a refugee.

The article must, however, be read always with the proviso in mind, that the protection of the article is only available to refugees provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. Here, says Mr Scannell, is where the Secretary of State has failed to take account of the French cases, details of which were supplied to him, which, submits Mr Scannell, show that in France there have been instances in which those who have sought asylum as refugees have been denied the protection of article 31.1 simply on the grounds that their status has not been recognised. Mr Scannell has referred us in particular to the case of a Mr Vilvarajah. This and other cases were quoted and summarised in a letter sent to the Secretary of State on 23 February 1993 by those instructing Mr Scannell. The gist of the submission is that the Secretary of State, by saying in the letter which I have quoted that he is satisfied that France would not impose any penal measures on an asylum seeker, is upholding the decision of the French court where a penalty was imposed on an asylum seeker notwithstanding the fact that his claim to be a refugee was still outstanding and had not been dealt with. The difficulty in following this line of argument to the conclusion which Mr Scannell wishes us to reach is two-fold. The first difficulty is that the details that we have of the case are fragmentary and are very far from complete. It appears, and to this extent I would not quarrel with the submissions made by Mr Scannell, that Mr Vilvarajah, having travelled through France to England and then back to France, arrived there on 25 October 1992 and found himself in court and being prosecuted two days later. He was, it seems, convicted of being an illegal entrant and was sentenced to a term of imprisonment and also to deportation. The case came before the Directional Chamber of the Court of Appeal in Bordeaux on 16 December, where it was noted that on 15 December 1992 Mr Vilvarajah had made an application for political asylum to the OFPRA -- ie the French organisation which is charged with dealing with such applications. The Directional Court set aside the order for deportation as incompatible with the steps taken before the OFPRA, but upheld the conviction and the sentence of imprisonment passed on Mr Vilvarajah. Thus, said Mr Scannell, we are here provided with an instance of the French authorities treating article 31.1 as denying relief to one who is yet to be established as a refugee without regard to the fact that his claim for asylum as a refugee is still outstanding.

There are difficulties both in seeing what the French Directional Court had before it as to the status of Mr Vilvarajah as a refugee and also in seeing what evidence had been put before the court of first instance on these matters. As I have said, the court noted that the application for political asylum was not made until 15 December 1992, some three months after the trial and conviction of the applicant. Mr Scannell has drawn attention to evidence that in France there may be considerable difficulties in an applicant, especially if he is in prison, getting an application put forward. The more substantial difficulty is that there is no apparent reason to see why the court in that case, assuming awareness at the outset that Mr Vilvarajah intended to apply for asylum, should not have regarded the matter as being covered by the proviso to article 31.1, as quite plainly Mr Vilvarajah had not presented himself promptly to the authorities. Secondly, there are, I think, other and broader grounds for regarding Mr Scannell's submission as an insufficient basis for an attack upon the Secretary of State's decision. This material was put before the Secretary of State in support of the proposition that France (the country) does not abide by the clear language of article 31.1.

I need only speak of the other cases to which I have referred by saying that on the face of them they are quite plainly weaker as examples of suggested disregard of article 31.1 than Vilvarajah. It seems to me impossible to maintain the proposition that the Secretary of State, putting these decisions in the scales, should not have remained of the view which he has expressed, namely that France does indeed abide fully by the terms of the article and affords to refugees the protection for which the article provides. The proposition is, in essence, a repetition of the irrationality argument which Mr Scannell has rightly abandoned. I can see nothing in this point which would seem to me to have sufficient substance to merit the grant of leave to move.

Secondly, Mr Scannell dealt with the paragraph numbered five on the last page of the letter from the Secretary of State of 26 February 1993, which is concerned with the risk, as it is said, of Mr Khaboka being returned finally to the Congo. The paragraph reads as follows:

"The Secretary of State accepts that France may decide not to consider the merits of Mr Khaboka's case but to remove him to a safe third country. The Secretary of State is satisfied, for the reasons explained above, that France would not remove Mr Khaboka to any unsafe country, in breach of article 33 (or any other provision of the Convention). In particular, the Secretary of State accepts that France may remove Mr Khaboka to the Congo, but he is satisfied that France would do so only if the Congo is a safe country in the circumstances of Mr Khaboka's case.

The Secretary of State is therefore satisfied that France would either properly consider the merits of the asylum claim or would return Mr Khaboka to a safe third country. The Secretary of State considers that the risk of France taking action which would endanger Mr Khaboka is either non-existent or not sufficiently substantial to involve a potential breach of article 33 of the Convention (or any other provisions of the Convention)."

That, said Mr Scannell, is a view of the Secretary of State which, to put it no higher, is arguably unsustainable when regard is had to the evidence of the behaviour of the French authorities to others who have been deported by France.

Mr Scannell referred us to two documents in the bundle. One is a paper prepared by the French National Association for the Assistance of Foreigners at the border. That paper, written in October 1992, recites at page 93 of the bundle the history of a Zairean family who arrived at Roissy Airport on 30 May 1992 from the Congo and were sent back to that country. It is, I think, unnecessary for me to read further into that document because it appears to reflect a report of the same incident which is contained in a paper written by Amnesty International and dated 16 June 1992. That report, at page 100 of the bundle, says this:

"The situation of a Zairian family who arrived last week at the French border illustrates our concern. The Zairian national BL arrived at Roissy airport from the Congo with his sister and 4 children. After having taken part in a manifestation in Kinshasa, he was arrested but managed to escape. The Ministry for the Interior decided to send him back to the Congo and several tries have been made to send him back. After having been informed of this, we interrogated the Ministries of the Interior and Foreign Affairs on guarantees which they had been able to obtain from the Congolese authorities on lasting protection in that country for this family. To our great surprise we learnt that the ministers 'do not have many means', that it is 'impossible to know what would happen to Zairians sent back to the Congo', and that 'they are counting on the tolerance of the Congolese authorities'.

The official agreed to verify with the HCR the risks which a Zairian might run in the case of being sent back to the Congo. On Friday 13 June, HCR confirmed the existence of such risks, but the following day, the Minister of the Interior nevertheless sent these people back to the Congo under the pretext that the worries of HCR had been brought forward too late and that the decision to send them back had already been taken."

This material too was of course before the Secretary of State. There is not, nor could be, any attack on the good faith of the Secretary of State and those advising him in these proceedings, and again it is not now suggested that, in resolving the matter as he did, the Secretary of State made an irrational decision. Mr Scannell's complaint here is that, in the circumstances, the Secretary of State should have explained more fully why he failed to decide the matter in conformity with the allegations made by Amnesty, and repeated by the French National Organisation, about the attitude adopted by Ministers in France towards the Zairean family in question.

These cases involving applicants for asylum are of the greatest moment for the applicant and are invariably of great anxiety for those who have to consider them at any level. I have no reason to doubt that that anxiety is not shared in this instance by the Secretary of State. I look again at the letter of 26 February 1993, a four-page letter in which the Secretary of State sets out very fully and with reference to earlier documents precisely why he is and remains of the view that France is a safe country and a country which can be trusted not to return the applicant to the Congo unless satisfied that that in itself is a safe country to receive him. I really do not see what the Secretary of State could reasonably have been expected to add to this letter by way of comment upon the Amnesty report of what was said to have been said by the French Ministers in the case of the Zairean family.

Giving the matter the best consideration I can, I can see no arguable grounds for this application, and I for my part would refuse it.

Judgment Two:

SIR CHRISTOPHER SLADE: I agree and do not think I can usefully add anything of my own.

Judgment Three:

RALPH GIBSON LJ: I agree.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London, EC1; Treasury Solicitor