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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	24 May 1994
Citation / Document Symbol	[1994] Imm AR 472
Cite as	R v. Secretary of State for the Home Department, Ex parte Ramarajah, [1994] Imm AR 472, United Kingdom: High Court (England and Wales), 24 May 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b66724.html [accessed 4 November 2019]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte RAMARAJAH

Queen's Bench Division

[1994] Imm AR 472

Hearing Date: 24 May 1994

24 May 1994

Index Terms:

Political asylum -- refusal of application -- grant of limited exceptional leave -- whether that grant made judicial review of the refusal of asylum inappropriate if otherwise justified.

Held:

The applicant for leave to move for judicial review was a citizen of Sri Lanka who had been refused asylum by the Secretary of State. He had however been granted limited leave exceptionally outside the rules. As to the refusal of asylum, his plaint was that the Secretary of State had failed to give adequate reasons for his decision.

Relying on Kaygusuz counsel for the respondent argued that judicial review would be inappropriate, because the applicant had received a period of exceptional leave.

Held

1. From the applicant's point of view there were material differences between acceptance of a claim for asylum and a grant of exceptional leave.

2. The grant of exceptional leave did not make it inappropriate for leave to move for judicial review to be granted in relation to the application for asylum, if there were proper grounds for granting leave: Kaygusuz not followed.

3. The Secretary of State had not given adequate reasons and leave to move would be granted.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Kaygusuz [1991] Imm AR 300.

Counsel:

M Murphy for the applicant; R Jay for the respondent

PANEL: Laws J

Judgment One:

LAWS J: This case is one in which the applicant has been refused political asylum by the Secretary of State. It appears he is a Tamil from Sri Lanka. The decision letter from the Minister is dated 12 November 1993. The Secretary of

State indicates therein his view that Tamils in Sri Lanka are not a persecuted group within the meaning of the 1951 Geneva Convention. He goes on to say, as is certainly the fact, that he considers individual applications for asylum made for Tamils, but he finds in this particular case that this applicant is not a refugee.

Mr Jay, who has helpfully appeared before me today for the Secretary of State, accepts candidly that the letter does not contain sufficient reasoning to explain the Secretary of State's refusal of asylum. It has now been the practice for the department to give proper reasons in such cases for some time. Mr Jay submits, however, that all the difference is made to the case by the fact that the Secretary of State has granted the applicant an exceptional leave to remain for twelve months. That grant appears in the same letter. Mr Jay submits that in that case the applicant has achieved his aim to enter the United Kingdom, albeit at present only on a limited basis. He submits that it is open to the applicant, as is the fact, to apply for an extension within the course of his exceptional leave. If refused, it would be open to him to appeal to an adjudicator.

All those propositions are undoubtedly true as far as they go. Mr Jay has shown me the decision of Auld J in R v Secretary of State for the Home Department ex parte Kaygusuz [1991] Imm AR 300. That was a case in which leave to move for judicial review had been granted against a decision to refuse the applicant asylum, but after leave was granted the Secretary of State looked at the case again and granted twelve months' exceptional leave. The Secretary of State then moved to set aside the original grant of leave to move for judicial review. That was the application which fell to Auld J to determine in February 1991.

The judgment sets out the submissions made on behalf of the department by Mr Jay. He pointed to the exceptional leave to remain which had been granted and Auld J accepted that the leave to move should be set aside. He said at page 305:

"I agree with Mr Jay that, given the twofold decision of the Secretary of State on 2 October 1990, the basis for that application for judicial review is gone. The application by Mr Kaygusuz for the recognition of the status as a political refugee was a means to an end, namely, to obtain leave to enter. Although it is limited, he now has leave to enter the country and to remain here, and there is nothing to which his application for political asylum can attach, at least in relation to that initial decision."

It seems to me, with deference to Auld J, that there is an important difference, from an applicant's point of view, between the grant of exceptional leave to remain and the grant, were it to be accorded, of indefinite leave on the basis that the applicant is a refugee.

It is right, as I have indicated, that the applicant may apply to extend his exceptional leave and to appeal against any refusal. Clearly, however, the rights which he presently possesses are not to be measured in the same way as an indefinite leave to enter would be. In my view, it is also of some importance to note that if there is, as undoubtedly there is, a settled legitimate expectation that persons refused political asylum will have proper reasons given for that refusal, it is difficult to see why the grant of a lesser leave, an exceptional leave to remain, in the context of an asylum refusal, in any way relieves the Secretary of State from fulfilling that legitimate expectation.

In my judgment, there is in this case a clear argument question that the Secretary of State has not given, in the circumstances, proper reasons for his decision. The matter is not academic for the very reason I have explained: namely that exceptional leave and indefinite leave are manifestly two different things. I therefore propose to grant leave.

Other points have been taken by Mr Murphy in his re-amended ground. One is that his client was never interviewed. There is a political asylum questionnaire in the papers. It is possible that may have been completed by way of correspondence rather than interview. The existence of the questionnaire itself does not conclude the point, as Mr Jay acknowledges. The Treasury solicitor has not yet had the opportunity to take proper instructions from the Home Office as to the factual position regarding any interview. That can be looked into before the inter partes hearing now that leave is given.

Mr Murphy also asserts in his grounds that the applicant's case for asylum was so strong that the Secretary of State must have made a Wednesbury error in rejecting it. If that stood alone, I would decline to give leave on any such basis. There is not the material which would enable the court, responsibly and properly within the confines of the jurisdiction, to reach such a conclusion or even to conclude that it is arguable: I do not encourage the pursuit of that ground.

For the reasons which I have given, leave to move is granted.

DISPOSITION:

Application granted

SOLICITORS:

Ranjit Mano & Co, London SE17; Treasury Solicitor