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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	29 January 1993
Citation / Document Symbol	[1993] Imm AR 311
Cite as	R v. Secretary of State for the Home Department, Ex parte Manoharan Murali, [1993] Imm AR 311, United Kingdom: High Court (England and Wales), 29 January 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b67230.html [accessed 3 June 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MANOHARAN MURALI

Queen's Bench Division

[1993] Imm AR 311

Hearing Date: 29 January 1993

29 January 1993

Index Terms:

Political asylum -- Sri Lankan -- arrived in United Kingdom from Belgium -- refused leave to enter -- claimed political asylum -- Secretary of State refused to consider application on the merits -- decided to return applicant to Belgium -- whether decision was unreasonable -- whether unsafe to return applicant to Belgium when he had travelled without papers -- whether the Secretary of State's policy unreasonable in that it fettered his discretion. HC 251 para 75.

Held:

The Secretary of State applied to have set aside leave to move for judicial review granted to the applicant who was a citizen of Sri Lanka and who had been refused leave to enter the United Kingdom on his arrival from Belgium. He had then applied for political asylum: the Secretary of State had declined to consider the application on the merits: he had decided to return the applicant to Belgium.

It was argued on behalf of the applicant for judicial review that he had travelled without papers and it would be unsafe to return him to Belgium because in those circumstances his application for asylum might not be considered there. Moreover the applicant had strong links with the United Kingdom. He did not fall within those categories to which the Secretary of State had stated he would give exceptional consideration, but in that regard the Secretary of State's policy was unreasonable because by its terms he had unreasonably fettered his discretion.

Held

1. That it was asserted that Belgium might not, in the circumstances consider seriously an application for asylum by the applicant was no reason for the Secretary of State to consider the application on the merits.

2. Whether or not the Secretary of State had fettered his discretion in the terms of his publicly announced policy did not arise in this instant case because it was clear from the Secretary of State's letter that he had indeed exercised a discretion, albeit not in the applicant's favour.

Counsel:

Miss A Foster for the Secretary of State; M Watson-Gandy for the applicant

PANEL: Popplewell J

Judgment One:

POPPLEWELL J: This is an application for judicial review of a decision of the Secretary of State dated 26 January to refuse to consider the applicant's claim for asylum in the United Kingdom and to remove him to Belgium. Yesterday morning, shortly before the luncheon adjournment, I granted the applicant leave to move on an ex parte application because I was told that he was likely to be put on a plane at two o'clock and I therefore granted leave in order that I could hear the matter more fully. That I have done today because the Secretary of State has been represented at this hearing. The facts are not substantially in dispute and are these.

This applicant is aged 19. He came to this country from Sri Lanka where he is a citizen having journeyed across Europe and arriving in this country from Belgium. The applicant was refused leave to enter the United Kingdom on 21 January and he sought political asylum. That application was refused on the basis of a "third country".

It is argued on his behalf that as he has strong links with this country he should be allowed to stay here and that the policy adopted by the Secretary of State is irrational. Additionally, it was argued that it would be unsafe to return him to Belgium because he travelled without papers and the Belgians might not treat his application seriously. There is nothing in that latter point in my judgment.

The policy which the Secretary of State adopts in this type of case is set out in answer to a parliamentary question on 25 July 1990 when Lord Waddington, who was then Home Secretary, gave an answer setting out what is the well- known position: saying, in effect, that normally applications for asylum from a passenger who has arrived in this country from another country will be returned to that country and that is normal international practice. He ended his statement with this:

"However, in considering any individual case I shall take into account any evidence of substantial links with the United Kingdom which in my view would make it reasonable for the claim for asylum exceptionally to be considered here."

On 21 March 1991 there was a further letter from the Secretary of State setting out what he intended by the phrase "substantial links". It reads in its material part:

"We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where:

(a) the applicant's spouse is in the United Kingdom

(b) the applicant is an unmarried minor and a parent is in the United Kingdom

(c) the applicant has an unmarried minor child in the United Kingdom." This applicant does not come into any of these categories. The letter goes on saying that discretion would need to be exercised according to the merits of the case and then three matters are set out, none of which cover this case. The paragraph on which the applicant relies is this:

"Cases citing family links which would not normally be considered not displaying any of the features which engaged the exercises of discretion would definitely not be considered substantively. This means that a brother who is not in any way dependent on his sibling(s), would not have his case considered here, no matter how strong his cultural or linguistic links with the United Kingdom."

I think the fair reading of that paragraph is that if you do not come within category (a), (b) and (c) you will not have your case considered here no matter how strong your cultural or linguistic links with the United Kingdom and that there is not any discretion to be exercised because that is the policy. That policy is defended on the basis that it is up to the Secretary of State to lay down policy which is subject to Parliament and that is the place to challenge it.

Mr Watson-Gandy on behalf of the applicant has challenged the policy and said that it is inconsistent with the exercise of discretion, it does not promote fairness, it is unreasonable. However, when one looks at what the Secretary of State has done in this case it is to exercise a discretion irrespective of the policy. In the refusal letter the Secretary of State says this:

"According to our information Mr Manoharan is 19 years of age and therefore does not fall within these usual criteria. The Secretary of State has considered whether there are any exceptional, compassionate circumstances but he is not satisfied that there are any . . ."

The argument which has been mounted on the criticism of policy in my judgment does not operate in the instant case because the Secretary of State has exercised his discretion. He has exercised it against the applicant and in my judgment there is nothing irrational about that decision. For those reasons this leave which I granted yesterday will be set aside.

DISPOSITION:

Leave to move for judicial review set aside

SOLICITORS:

Treasury Solicitor; Maheson & Co, London SW17.