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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	11 December 1992
Citation / Document Symbol	[1993] Imm AR 331
Cite as	R v. Secretary of State for the Home Department, Ex parte Kyomya, [1993] Imm AR 331, United Kingdom: High Court (England and Wales), 11 December 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b69d24.html [accessed 4 November 2019]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KYOMYA

Queen's Bench Division

[1993] Imm AR 331

Hearing Date: 11 December 1992

11 December 1992

Index Terms:

Political asylum -- application by citizen of Uganda after refusal of leave to enter -- arrived in the United Kingdom from France -- erroneously given Standard Acknowledgement Form when granted temporary admission -- Secretary of State then declined to consider case on its merits -- decided to return applicant to France -- whether issue of Standard Acknowlegement Form gave rise to a legitimate expectation that application would be considered on the merits -- whether applicant had had opportunity to explain why she was reluctant to return to France -- whether Secretary of State's approach generally was reasonable. HC 251 para 75.

Held:

The applicant for leave to move for judicial review was a citizen of Uganda who, while on a visit to France, learnt of her husband's politically motivated murder in Uganda. She was fearful of remaining in France and decided to move to Denmark: in fact she arrived in the United Kingdom. When she had been refused leave to enter, she claimed political asylum. She was granted temporary admission. She was given a Standard Acknowledgement Form, which was issued to those given admission while their applications for asylum were under consideration. In the event the Secretary of State, following his normal policy, decided not to consider the application on the merits, but to return the applicant to France.

Counsel submitted that the giving to the applicant of the Standard Acknowledgement Form, albeit in error, had given rise to a legitimate expectation that the application would be considered on the merits. He also asserted that the applicant had not been given a full opportunity to explain why she was reluctant to return to France: the Secretary of State's conduct of the case had generally, been Wednesbury unreasonable.

Held

1. As counsel ultimately conceded, the giving of the Standard Acknowledgement Form to the applicant did not give rise to any legitimate expectation on her part that her application would be considered on the merits. No reliance had been placed on the document by her advisers.

2. The applicant had been represented by experienced solicitors when representations were made on her behalf and it could not be said that she had not had the opportunity fully to put her case.

3. The conduct of the Secretary of State, in rectifying the error of the giving of the Standard Acknowledgement Form, and generally, could not be attacked on Wednesbury principles.

Cases referred to in the Judgment:

R v Jockey Club ex parte RAM Racecourses Ltd [1993] 2 All ER 225.

Counsel:

M Soorjoo for the applicant; M Shaw for the respondent

PANEL: Otton J

Judgment One:

OTTON J: This is an application for leave to move for judicial review of the refusal of leave to enter by an immigration officer on 8 December 1992 and the refusal by the Secretary of State for the Home Department to consider the applicant's application for asylum.

The applicant, Margaret Kyomya, is a citizen of Uganda. She is thus subject to control under the Immigration Act 1971. She claimed political asylum on her arrival in the United Kingdom on 20 November. She was granted temporary admission into the United Kingdom on 24 November 1992 after a representation by the Refugee Legal Centre to the immigration service. On the same day, the applicant received a standard acknowledgement letter from the Secretary of State which stated:

"The person named below has applied for asylum in the United Kingdom and this is under consideration . . . This document is valid until 24 November 1993 or until the application is decided."

In the event, the Secretary of State and the immigration service processed her case on 8 December 1992, the Secretary of State informed the applicant that her application for asylum had not been considered. On 9 December, the Secretary of State wrote to the applicant's solicitors stating that the Home Office had erred in issuing the applicant with the Standard Acknowledgement Form, which was not appropriate in these circumstances. Thus, there was a clear error on the part of the administration whereby they issued the wrong form to the applicant which said in terms that her application for asylum in the United Kingdom was under consideration by the immigration authorities.

It is said that the Secretary of State, by sending this standard document, created a legitimate expectation in the applicant that her asylum application would be considered. Mr Soorjoo submits that it is also Wednesbury unreasonable for the Secretary of State to fail to comply with the undertaking which, by implication, is within the letter to which I have referred.

It is further submitted that the applicant has been the victim of a procedural impropriety which is of such a character that it strikes at or flaws the decision itself. The onus is on the Secretary of State to ensure that the correct procedures are followed. It is procedurally improper for the Secretary of State to overturn a decision to follow certain procedures by a further decision not to follow these procedures. Today, in argument, Mr Soorjoo has advanced a further ground that there was not only a procedural impropriety in the sense that I have just described, but the whole procedure was flawed by virtue of the administrative error. Thus, the requirements of good administration are such that the Secretary of State cannot escape from the error that was perpetrated in his name by officials in his department and good administration requires that the decision cannot and should not stand. The Secretary of State should now carry out his intention to consider the application for political asylum as he undertook to do by the letter of 24 November.

This was a "third country" situation. The applicant had not come straight to the United Kingdom from Uganda. In the affidavit that was put in on her behalf by Mr Jawaid Ahmed Luqmani, a solicitor who had the conduct of this matter, it is stated that the applicant applied for a visa to visit relatives in France on 8 September 1992. The visa was duly granted for one visit only until 7 January 1993. Accordingly, she travelled with her son, Eric Ankwase, to France.

On 29 October, the applicant started to make her arrangements to leave France to travel back to Uganda. The flight was booked for 28 November. However, about a week before she was due to depart, the applicant received a telephone call informing her that her husband had been assassinated in Uganda in a most brutal murder because of his political involvement. She was further warned that it would be dangerous for her to return to Uganda and or to remain in France as her husband had admitted her whereabouts to those who had carried out the murder. She therefore felt it incumbent upon her to leave France; she did so with the intention of travelling to Denmark.

However, the applicant did not travel directly to Denmark, but arrived in London where she claimed political asylum. Thus, as the applicant had come from France, the usual procedure was for her to be returned to France for the purpose of her making her first application for political asylum in the appropriate country, namely, France, that being the country in which she had arrived after leaving Uganda.

That being so, one can see immediately that the situation which the immigration authorities had to consider was the precise and discrete question of whether this was a case where the applicant should be allowed to stay in this country or whether, an application for political asylum having been lodged, she should be returned to France.

Against that background, one can see immediately how the error came about in the letter of 24 November, which, on its face, quite clearly stated that the applicant had applied for asylum in the United Kingdom and that this matter was under consideration.

I have come to the conclusion that, regrettable though that error was, it is not one of which the applicant can take advantage. First of all, I reject the argument that by the issuing of that letter, the applicant had a legitimate expectation that her application for asylum would be considered in the United Kingdom. It seems to me that no legitimate expectation to that end could ever have been derived by that statement or that document. Mr Soorjoo, who has said everything that can be said on behalf of the applicant, recognises this and, in his final submissions, indicated that he was not going to rely upon that line of argument. Even so, I am satisfied that this is not a case where any legitimate expectation could be said to have arisen because it must have been abundantly clear to everybody concerned, including those who have been assisting the applicant that, notwithstanding the letter, the Secretary of State was in fact considering whether or not to return her to France. All representations that were made on her behalf were directed to that issue and not exclusively in support of her application for asylum in the United Kingdom.

Thus, having borne in mind the analysis of legitimate expectation, which has been brought to my attention in ex parte RAM Racecourses Ltd I am satisfied that this is not a case where any legitimate expectation arose. There was no reliance on that document. There is no evidence that any of those who were concerned were influenced in their dealings with the immigration authorities by that letter.

As to the allegation of procedural impropriety, the whole essence of the procedure was to ensure that the applicant had a full opportunity to put her case in support not only of why she should not be returned to France, but also her application for political asylum in this country.

I need not go into the letters in any detail but, the applicant was represented by solicitors who, as one would expect, were fully conversant with immigration practice. It is clear that they had in mind that their obligation was to advance the arguments as to why she should not be sent back to France. There was a series of letters in which these arguments were raised in the fullest way and which were dealt with by the immigration authorities in reply.

The applicant was also interviewed on 8 December and she was given an opportunity to state her case. There was also a telephone conversation on 9 December, the day on which the error was communicated to those acting for the applicant. It is impossible to say that the applicant did not have a full opportunity to have her case considered.

In those circumstances, it seems to me that I am left with the final point taken by the applicant, namely, that it was Wednesbury unreasonable for the Secretary of State to fail to comply with his undertaking. In my judgment, once the error had been discovered, the Secretary of State did everything which was required of him. He pointed out the existence of the error to those acting for the applicant and indicated that the existence of that error did not invalidate the procedure. He said that notwithstanding the error, he had gone on to consider what he was required to consider, namely, whether in this third country case, he should return the applicant to France. He duly gave the consideration and reached his decision on it.

In my view, it is significant that the letter of 8 December was couched in the terms in which it was. It said:

"You have applied for asylum in the United Kingdom on the ground that you have a well-founded fear of persecution in Uganda for reasons of race, religion, nationality, membership of a particular social group or political opinion.

"However, Uganda is not the only country to which you can be removed. You arrived in France where you spent nine weeks. You are under paragraph 3(1)(c) of schedule 2 of the Immigration Act 1971 properly returnable to France and I am satisfied on the information available that you will be readmitted there. Moreover France is a signatory to the 1951 Convention Relating to the Status of Refugees . . ."

"You have expressed fears about your safety in France, but the Secretary of State is satisfied France is a safe country for asylum seekers and that the French authorities would be able to offer protection in the event of any threat to your safety. In these circumstances your application here has not been considered."

In my judgment, that was a perfectly legitimate and proper step for the Secretary of State to take. It was not unreasonable, in any sense of that word, for him to carry out the decision-making process notwithstanding the document which had been issued in error.

Finally, on 9 December, after further representations had been made to him, the chief immigration officer wrote as follows:

"We spoke this afternoon about this case. After discussion, I explained to you how I was quite prepared, on behalf of the Department, to regret the error committed on 24 November in issuing Ms Kyomya and her son with a Standard Acknowledgement Form. This was a precipitate action, taken before '3rd country removal' was deemed appropriate but it in no way disadvantaged your client, who thus had access to benefit otherwise not available to her.

"We agreed that, on arrival, she had applied for asylum here. The SAF serves to confirm that and says that 'this is under consideration'. The document states a validity of one year (the normal period of issue), 'or until the asylum application is decided: whichever is earlier'.

"Her application for asylum was passed in the normal way to the Home Office. The Home Office looked at her application and replied on 8 December. In that letter, it was clearly explained why her asylum application had not been considered here and why she was properly returnable to France.

"It is noted that you intend to consult counsel on the question of what you perceive to be inconsistency between the terms of the SAF and the Home Office letter. In the meantime we have made fresh removal directions . . ."

I am satisfied that in spite of the error, the Home Office has taken every proper step to remedy the situation. The decision which they have reached is not in any sense unreasonable, or procedurally flawed.

This application must therefore be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Gordon Doctors & Walton, London SE17; Treasury Solicitor