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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	27 January 1993
Citation / Document Symbol	[1993] Imm AR 308
Cite as	R v. Secretary of State for the Home Department, Ex parte Jibril, [1993] Imm AR 308, United Kingdom: High Court (England and Wales), 27 January 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b7101c.html [accessed 3 June 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte JIBRIL

Queen's Bench Division

[1993] Imm AR 308

Hearing Date: 27 January 1993

27 January 1993

Index Terms:

Political asylum -- application by Somali -- Secretary of State declined to expedite consideration of application out of sequence -- whether decision was Wednesbury unreasonable -- whether Secretary of State obliged to give very full reasons for his refusal to expedite the application so that the decision might be effectively challenged on judicial review. HC 251 para 140: European Convention on Human Rights arts 6(1), 8.

Held:

Application for leave to move for judicial review of the refusal by the Secretary of State to consider out of order an application for political asylum made by a Somali. Counsel argued that the circumstances of the applicant's family were such that the court should enquire into the reasons for the delay, the case in that respect being distinguishable from Phansopkar and Rofath Ullah. He further argued that by failing to give full reasons for his decision the Secretary of State avoided an opportunity by the court fully to investigate the Secretary of State's decision which itself was a breach of the European Convention on Human Rights.

Held

1. The decision of the Secretary of State could not in the light of the terms of his letter, be considered Wednesbury unreasonable.

2. Following the Court of Appeal judgment in NALGO, the court could not give such weight to the European Convention on Human Rights as to interfere with a ministerial decision because allegedly it had not paid due attention to the provisions of that Convention.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Phansopkar [1976] 1 QB 606: [1975] 3 All ER 497.

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

R v Secretary of State for the Home Department ex parte Rofath Ullah and ors [1989] 1 QB 219: [1989] Imm AR 201.

National and Local Government Officers Association v Secretary of State for the Environment (1992) The Times, 2 December.

Counsel:

P Duffy for the applicants; M Shaw for the respondent

PANEL: Hutchison J

Judgment One:

HUTCHISON J: It is now 5.35 pm, a not unusual situation because of the way cases are listed in the Crown Office. The shorthand writer and I have been here since 10.30 am and, in the circumstances, and reminding myself that this is an application for leave ordinarily expected to last not more than half an hour, which has lasted now for an hour and a half or so, I propose to give my reasons very briefly.

It is an unusual case because it amounts to an attempt to challenge the delays occasioned in considering an asylum application. I shall not rehearse the background or the facts. They are well-known and can be ascertained from the documents. The reasons put forward on behalf of the Home Office, Asylum Division, are contained essentially in the letter of 12 January 1992 and it seems to me reading that letter that, at first sight, it contains an explanation of the reasons why the applicant's asylum application has not been elevated out of the order which it would normally take in the queue of waiting applications which are quite unassailable.

Mr Duffy, in his extremely cogent and persuasive arguments, has identified really two different bases for attacking that conclusion. First, referring me to R v Secretary of State for the Home Department ex parte Phansopkar [1976] 1 QB 606 (CA) and R v Secretary of State for the Home Department ex parte Rofath Ullah [1989] 1 QB 219, he suggests that there are here grounds for distinction because neither case was concerned with a situation relating to such extreme circumstances as the family of the applicant face in the present case. That may be so, but I reject his submission that the present case therefore calls for different treatment. The respondents have set out in the letter of 12 January a reasoned explanation as to why they feel unable to give expedition to the applicant's application for asylum. That is contained in the sentence which reads:

"That is not to say that we are not prepared to look at cases out of turn where there are exceptional compassionate reasons for doing so but we continue to believe that the particular circumstances of Mr Jibril's case do not justify such treatment. In reaching this conclusion careful consideration has been given to the contents of your letter of 16 September 1992 together with its enclosures but we can find no evidence therein to suggest that the plight of your client's family is any more compelling than that of the relatives of many other Somali asylum seekers whose applications here in the United Kingdom pre-date that of Mr Jibril but are not yet resolved" and they go on to refer to his medical condition.

That, as it seems to me, is essentially a matter for the judgment of the Home Office. They have considered it and reached a conclusion about it and I find nothing -- it is regrettable that one has to say this -- in the particularly distressing circumstances affecting the applicant and his family which would lead me to conclude that it was, prima facie, arguably a Wednesbury unreasonable decision to which the Home Office has come.

Then the matter is put, and this is really Mr Duffy's primary argument, on the basis of the European Convention on Human Rights and articles 8 and 6(1).

It seems to me that in the light of what is said in NALGO v Secretary of State for the Environment (unreported, 26 November 1992, CA), in relation to which I, in principle, accept Mr Shaw's submissions, that that is a very difficult argument to sustain.

What Mr Duffy is contending for is a rule in cases such as this, because of their extreme gravity, matters of life and death in relation to the family and family life, that it is incumbent on the Home Office to do more than is done in the letter and to give a fuller reasoned decision so that it is open to an applicant, such as the present applicant, to mount a reasoned challenge to it in the courts; and it is said that in the absence of such a decision there is, in effect, though not by intent, a denial of proper access to the courts. I have tried to summarise in a very compendious way that branch of the submissions.

In the light of NALGO and of the attitude of our courts to the Convention, I am not persuaded that it is incumbent on the Home Secretary to give such reasons. It was put, I think with some encouragement from me, as being an argument analogous in a way to R v Secretary of State for the Home Department ex parte Khawaja [1982] 1 WLR 625, that gravity is such that the decision not to expedite requires not only the most careful consideration but a reasoned decision. I am afraid I cannot accept that argument because it depends on giving a weight to the European Convention on Human Rights which the NALGO case does not entitle me to give to it and, in any event, because I find in the letter of 12 January no indication that proper consideration has not been given to the distressing circumstances of this case in comparison with those of other competing cases.

I am not proposing to say anything more in dismissing this application than that I consider that there really is no arguable point that I should refuse leave accordingly.

DISPOSITION:

Application refused

SOLICITORS:

North Islington Law Centre, Treasury Solicitor