R v. Secretary of State for the Home Department, Ex parte Yilmaz

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	12 February 1993
Citation / Document Symbol	[1993] Imm AR 359
Cite as	R v. Secretary of State for the Home Department, Ex parte Yilmaz, [1993] Imm AR 359, United Kingdom: High Court (England and Wales), 12 February 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b61924.html [accessed 3 June 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte YILMAZ

Queen's Bench Division

[1993] Imm AR 359

Hearing Date: 12 February 1993

12 February 1993

Index Terms:

Political asylum -- Turkish Kurd -- application for asylum made on arrival in United Kingdom -- Secretary of State declined to consider case on the merits -- concluded applicant had arrived from Germany to which safe country Secretary of State proposed to return him -- whether in the circumstances the Secretary of State had power so to act -- whether it had been shown to the requisite standard of proof that the applicant had arrived from and had entered Germany. Immigration Act 1971 sch 2 paras 8(1)(c)(iii), (iv).

Held:

The applicant for leave to move for judicial review was a Turkish Kurd. He had applied for political asylum on his arrival in the United Kingdom. The Secretary of State had concluded he had arrived from Germany, in which country he had disembarked. Accordingly the Secretary of State refused to consider the case on the merits and decided, in accordance with his publicly stated policy, to return the applicant to Germany, the first safe country he had entered.

Counsel submitted that the Secretary of State had no power under the 1971 Act to return the applicant to Germany. It was not admitted that he had arrived from Germany. The evidence did not establish, to the standard laid down in Khawaja, that the applicant had arrived from Germany and much of the evidence was inadmissible as hearsay.

Held

1. The court did not decide whether the high standard of proof laid down in Khawaja in law applied, as counsel asserted, to this instant case. Applying it, however, the court concluded that it had been shown that the applicant had arrived from Germany.

2. Even applying Khawaja, the Secretary of State was not required to establish the facts to the court on evidence in a form that would be admissible in a criminal court.

3. On the facts no challenge to the Secretary of State's decision on Wednesbury principles could be successful.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139.

Charles Bouzeid and ors v Secretary of State for the Home Department [1991] Imm AR 204.

Counsel:

M Shrimpton for the applicant; R Singh for the respondent

PANEL: Auld J

Judgment One:

AULD J: The applicant is a Turkish Kurd. He arrived in the United Kingdom, Gatwick Airport, on 15 January 1993. According to the record of the information that he gave to the immigration authorities when interviewed on his application for asylum, he arrived on Flight GT 959 from Frankfurt. It is not clear from the record of the interview whether that is information that he gave or whether it is information which emanates from an officer who saw him disembark. I shall refer to that in a moment. However, he did indicate at the interview that he was in transit at the airport from which he had come for a period of two hours. He said that he had originally boarded a Turkish aircraft and had then changed aircraft at another place. He did not know what that other place was. He went on to indicate that he had passed through passport control in the transit country.

The immigration record recites that he was seen by an airfield officer, whose name is Richards, disembarking from the Frankfurt plane. He was asked if he had claimed asylum in the country through which he had passed as a transit passenger. He indicated no. He said: "The party sent me here so I had to come here", referring to the organisation which arranged his flight. The record also indicated that there had been found on him a Frankfurt bus ticket dated the day before, 14 January 1993. The ticket, of which I have seen a copy, simply gives the date 14. It may or may not be January, but it is a Frankfurt bus ticket.

The Secretary of State, in the light of that information, decided that he should apply his "third country removal policy", the policy under which he returns would-be applicants for asylum to the country within the Community from which they have come to this country in order that the claim for asylum can be made there.

In support of this application, it is said that the Secretary of State has no power under paragraph 8 of schedule 2 to the Immigration Act 1971 to order the applicant's removal, as he has done, to Germany. Paragraph 8(1)(c)(iii) provides that an immigration officer, where a person arriving in the United Kingdom is refused leave to enter, may direct and make arrangements for his removal to a country or territory in which he embarked for the United Kingdom. Paragraph (iv) provides:

"(or) to a country or territory to which there is reason to believe that he will be admitted."

Mr Shrimpton maintains that the Secretary of State had no power to order this man to return to Germany under paragraph 8(1)(c)(iii) because it is not admitted that he came to this country via Germany, nor is it admitted that he came via a Community country. There is an issue between the parties as to the test which should be applied, whether it is a precedent fact as in the case of illegal entrants as required by the decision in Khawaja or the irrationality test.

I put aside that issue, and in the applicant's favour I deal with the matter as if the Khawaja test applies; that is that the Secretary of State has to show, to a high degree of probability, the facts upon which he relies in applying his third country removal policy to direct the transmission of this applicant to Germany. It is said by Mr Shrimpton that the evidence is simply not there to enable the Secretary of State or the court to find the high degree of probability necessary to bring this case within that test, that this applicant had indeed come to this country from Germany.

In my view, there is such evidence. I say that notwithstanding that some of it is hearsay. It was not intended by the House of Lords in the case of Khawaja that the Secretary of State should be required to establish the facts to the court on evidence in a form which would be admissible in a criminal court. It was clearly contemplated by their lordships in that case that most of these issues would be dealt with in the Divisional Court on affidavit evidence. It is not intended to import into these proceedings the elaborate rules of evidence appropriate to criminal proceedings before a jury.

Here, the information given by the applicant himself, to which I have referred, and as recorded by an immigration officer on this man's arrival, which indicates that he arrived on a Frankfurt flight on 15 January 1993, and also the Frankfurt bus ticket which was found in his jacket pocket, are of sufficient weight, when taken together, to satisfy me to the high degree of probability required that he did indeed come to this country from Germany, and that the Secretary of State was therefore entitled to direct his return under paragraph 8(1)(c)(iii) of schedule 2 to the 1971 Act.

In my view, too, the Secretary of State has power to order his transmission there under paragraph 8(1)(c)(iv), namely to a country or territory to which there is reason to believe that he will be admitted. I have been referred by Mr Singh to the case of Bouzeid v Secretary of State for the Home Department [1991] Imm AR 204 and to a passage from the judgment of Dillon LJ at pages 296-297. I need not read that passage. It indicates the need for urgency in matters of this sort. It points out that return to a Community country is not in itself something which exposes the person to be returned to any danger, since he is being returned there either to make a substantive application for asylum, or, if that is not considered, for return by that country to this, so that the further application may be considered. The Secretary of State is entitled to take the view, when applying his policy, that a Community country to which he deems it fit to return an applicant for asylum, in accordance with the third country removal policy, will abide by it or, at the very least, will return him to this country for further consideration. Accordingly this application is refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Scudamore Gill, London WC1; Treasury Solicitor