Seref Demir v. Immigration Officer Harwich First; Secretary of State for the Home Department; United Nations High Commissioner for Refugees, ad Litem

Seref DEMIR
Appellant
and
Immigration Officer Harwich
First Respondent
and
Secretary of State for the Home Department
Second Respondent
and
United Nations High Commissioner for Refugees
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Before:
Mrs P A Symons JP
Special Adjudicator
at HATTON CROSS

DETERMINATION AND REASONS

The appellant is a citizen of Turkey born on 10 November 1964 and he appeals against the decision of the Secretary of State to refuse him asylum in the United Kingdom. The appellant maintains he has a well-founded fear of persecution in Turkey for a Convention reason. The Secretary of State has refused the application without considering it substantively because, he says, Turkey is not the only country to which the appellant can be removed if refused leave to enter as a refugee. The Secretary of State says that the appellant arrived here from the Netherlands where he had spent an unspecified time in transit from Turkey. So the appellant is returnable to the Netherlands, a country which is a signatory to the 1951 UN Convention on Refugees. The Secretary of State says that he has no reason to believe that the authorities in the Netherlands would not comply with their obligations under the Convention.

The Secretary of State refers, in his reasons for refusal, to paragraph 180K of the Immigration Rules HC 725 and states he can find no reason to depart from the provision therein that an asylum application will normally be refused without substantive consideration if there is a safe 3rd country to which the appellant can be sent.

The Secretary of State has therefore certified on 6 November 1993 that the appellant's claim that his removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention, is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention.

At the hearing the appellant was represented by mr Osibodu, of the Refugee Legal Centre, and the respondent by Mr. Cooper, Home Office presenting officer. The appellant was the only witness. At the hearing Mr. Cooper submitted 2 reports from Harwich, the port at which the appellant arrived on 4 November 1993.

The Office of the United Nations High Commissioner for Refugees has indicated in a letter dated 7 December 1993, that they wish to be treated as a party to the appeal. They have indicated that they do not intend to be present at the hearing, but made observations on the issues involved in this appeal. The United Nations High Commissioner for Refugees submit that the decision not to consider this appellant's application for asylum substantively and to remove him from the United Kingdom is wrong in law, as it failed to take full account of the United Kingdom's obligations under the 1951 Convention. The letter sets out the position of the United Nations High Commissioner for Refugees, but this position has not been accepted as binding in the United Kingdom.

The appellant arrived in the United Kingdom on 4 November 1993, from Holland, concealed in a van. He claimed asylum on 5 November 1993. He stated, when interviewed, that he had left Istanbul by lorry in the first week of October and did not know where or how long he had been in any places on the way. Everything had been provided by the organisation which had arranged his travel to the United Kingdom. The appellant had paid 20 million Turkish Lira. Ten people had travelled from Turkey in the back of a lorry, but the others had stayed in other countries and the appellant had been the only one for the United Kingdom. He said he had been told that Human Rights were observed better here than anywhere else, and so he had came here.

He was a Kurd and enjoyed no human rights in Turkey. He said that on 2 July 1993 in Sivas, where he lived, 37 Kurds, friends and relatives had been burnt, so he had left. He said he had spent about I/2 hour in Holland and had not claimed asylum there as the agreement had been he should come to the United Kingdom.

The 2 port reports which Mr. Cooper presented at the hearing describe the arrival of a camper van in Harwich which had had a specially constructed compartment in it, in which had been found 4 people, three men and one woman, who had been very reluctant to come out. The driver of the van was being prosecuted. The passengers said they had entered the van at a petrol station in Holland.

At the hearing the appellant said his home was in Sivas in Turkey, and due to an incident there on 2 July 1993 in which 37 people had been burnt to death he had fled Turkey, as he was blamed for this incident. He said he went to Istanbul and there was put in touch with a man, Mustafa, whom, he was told, arranged travel to Europe. He had paid this man 20 million Turkish Lira. The appellant had told Mustafa he wished to go to the United Kingdom. He had not been told the route he would take and when he had asked Mustafa, had been told this was a secret of Mustafals job. The appellant emphasised throughout his evidence that the agreement was that he should ask no questions.

The appellant said he had initially travelled from Istanbul in a lorry, with 10 people in all. They had travelled some 2 to 3 days in the lorry, only getting out to relieve themselves. The food was provided in the lorry. He said they had then been transferred to a minibus, but he did not know in which country this transfer had taken place. They had travelled in the minibus for one night and had seen signs, but these were in a foreign language and he had not known which language. They had then spent 3 days in an hotel. The 10 of them had stayed, but they had not discussed with each other where they were going or where they were. No one had known where they were. The appellant had asked no questions as Mustafa accompanied him always and the agreement was to ask nothing. During these 3 days 6 of the 10 travellers had left, collected by other people from the hotel.

The appellant said that the remaining 4 people, and Mustafa, had then travelled on by car for days. He could not recall how many. After 2 days they had stopped again in an hotel where they had stayed for 5 days. During these days 3 others had been collected and left. So for the next stage of the journey the appellant had travelled alone in the car with Mustafa. He described occasions when Mustafa had said there was danger ahead and so he had had to get in the boot of the car. At no time had he seen any state officials or witnessed the crossing of any frontiers.

The appellant said that after this journey by car he had transferred to a minibus. The transfer had occurred in a park and in sight of a petrol station, but he did not know where it was. Mustafa had slowed down near a mini bus in a park, and the appellant had transferred rapidly to the bus. There had been a special compartment in this bus, into which he had crawled. There were others there, but he did not know who or how many. They had travelled, he guessed, for 8 to 10 hours. It was dark in the compartment so he could only guess the period.

The appellant described the arrival and how he and the others had been let out of this compartment, out of which they could not get by themselves. He had discovered then that there had been 4 of them in this compartment. He had only realised he was in England because the steering wheel of the van, he saw, was on the right hand side.

Mr Cooper submitted that it appeared the appellant's journey had been organised by a professional. The appellant had specifically requested a journey to the United Kingdom and so clearly had had no intention of seeking asylum in any other country. Other people who had set out from Istanbul with the appellant, had been dropped off in other places, and so clearly the appellant could have been dropped off elsewhere too, had he chosen to be. There would have been opportunities to claim asylum elsewhere, but the appellant had had no intention of doing so. The appellant had not been prevented from claiming asylum elsewhere, he had simply not wished to.

Mr Osibodu submitte that the appeal had to be decided under paragraph 180K of HC 725, the current immigration rules. The appellant had had no opportunity to claim asylum in Holland, as all the arrangements for his travel had been made by a professional, Mustafa. The appellant had not been allowed to ask questions of this man's trade secrets. The deal had been to get the appellant to the United Kingdom and the appellant was not to concern his self with the route. Not once had the appellant came into contact with any state officials. He had not been aware of any border crossings. He had been told at times to get into the boot of the car because of danger ahead. The appellant had had no opportunity in Holland to seek asylum.

The appellant's evidence was that the last vehicle he had travelled in was this minibus with a specially constructed compartment, in which he had eventually been found in the United Kingdom. The appellant had not known on which country the transfer to the mini bus had taken place. It need nor necessarily have been in Holland, and if the journey in that bus had taken 8 to 10 hours it probably had not been on Holland that the transfer took place. The occasion of the transfer to the mini bus had been the last occasion on which there had been any sort of opportunity to seek asylum from State officials. After that the appellant had travelled in this compartment hidden from the world. So there was no evidence at all that the appellant had had any opportunity to seek asylum in Holland, and the evidence indicated that he had not had such an opportunity.

Mr Osibodu submitted that besides the issue of whether the appellant had had an opportunity to seek asylum in Holland, there was the issue as to the safety of Holland. There was no evidence that Holland would admit the appellant and there was a possibility he would be returned to Turkey. Germany would not accept him and nor would France. Germany would not accept asylum seekers from countries on their borders and there was no evidence the appellant had ever been in France.

Mr Osibodu referred me to the determinations of the appeals of the appellant's 3 travelling companions, apprehended with him on arrival in the United Kingdom. He submitted that the evidence of these, as to their journeys from the time they had entered the minibus, had been consistent. One appeal had been allowed, as the adjudicator had not been satisfied that those appellants, a husband and wife, had had the opportunity to seek asylum in Holland. The other appeal had been dismissed, but Mr Osibodu submitted, this was because this man's evidence as to what had happened to him prior to joining the minibus had not been found to be credible.

As Mr Osibodu introduced those arguments about these other appeals only in his final submissions, I gave Mr Cooper the opportunity to respond. He had himself been involved in the appeal which had been allowed, but know nothing of the other. He submitted that the adjudicator who had allowed the appeal had not had before him the 2 port reports which Mr. Cooper had submitted to me, and so I know more about the background to the case. Mr. Cooper agreed however, that the reports did nothing to undermine the credibility of the appellant's evidence. Indeed, Mr. Cooper said, they appeared to corroborate the evidence to a certain extent.

This case falls to be considered under Section 5 of the 2nd Schedule to the Immigration Act 1993, as the Secretary of State has certified that the appellant's claim, that it would be contrary to the United Kingdom's obligations under the 1951 Convention to remove him from the United Kingdom, is without foundation, as such a removal would not raise any issues under the Convention. My first task therefore is to decide whether I agree that the claim is without foundation, as certified by the Secretary of State.

The Secretary of State has to satisfy me that his certificate is sound, in other words, that there is indeed a safe 3rd country, Holland, to which the appellant can be removed without a breach of Convention obligations, and also that the Secretary of State is not barred from sending the appellant to that country by any of the provisions of paragraph 180K of the Immigration Rules HC 725.

I am satisfied that Holland is a safe country to which the appellant could be removed without any breach of the United Kingdom's Convention obligations. I am satisfied that Holland, as a signatory to the 1951 Convention and Protocol, is a country in which the appellant would suffer no threat to his life or freedom as defined by article 33 of the Convention. There is absolutely no evidence before me to suggest that the authorities in Holland would not abide by their obligations. I am satisfied also, and for the same reasons, that the authorities in Holland would not send the appellant on elsewhere in a manner contrary to the principles of the Convention. I reject the submissions made on the appellant's behalf that the United Kingdom would be in breach of UN Convention obligations if the appellant was removed to Holland.

I accept that the appellant did not come to the United Kingdom directly from Turkey, where he claims he fears persecution for a Convention reason. He clearly came via Holland, as he arrived on a ferry from the Hook of Holland. This is not disputed.

However I am not satisfied that the appellant has had an opportunity at the border or within the territories of Holland to make contact with that country's authorities in order to seek their protection. It is a requirement of paragraph 180K of HC 725 that the appellant should have had such an opportunity, and the Secretary of State has to satisfy me that he has had such an opportunity before the Secretary of State can be allowed to remove the appellant to Holland without a substantive consideration of his claim to asylum.

I have no reason to doubt the credibility of the appellant's evidence that he completed the last part of his journey to the United Kingdom in a minibus, or camper, confined within a specially constructed compartment which concealed him from view. I have no reason to doubt that this journey, so concealed, meant he had no opportunity to seek asylum in Holland. He had no opportunity to make contact with that country's authorities. I reject Mr. Cooper's submissions that the appellant did not have such an opportunity simply because he chose not to, and therefore that I could be satisfied as to the requirements of paragraph 180K. It seems to me, on the evidence, that the appellant's journey was arranged by professionals who carefully restricted him and constrained his movements.

I find then that I do not agree with the certificate of the Secretary of State because on the facts, as I find them, paragraph 180K does not in this case justify a removal to Holland.

I have next to decide whether, as a consequence of this decision, I should allow or dismiss the appellant's appeal, or refer the case back to the Secretary of State for reconsideration. Mr. Osibodu suggested that I should allow the appeal. I do not feel able to do this. The appellant's appeal is against a decision by the Secretary of State to refuse him leave to enter the United Turkey. This claim has not been substantively considered by the Secretary of State, and there is no evidence before me on which to make a decision as to whether the appellant's claim is well-founded. I find the only viable option open to me is to refer the case back to the Secretary of State for him to consider the asylum claim substantively. I find that the Secretary of State should do this because he is not entitled to remove the appellant without considering his claim to asylum substantively, as the case does not fulfil all the requirements of paragraph 180 K of HC 725.

The case is referred back to the Secretary of State to consider the appellant's asylum claim substantively.

I made this decision at the conclusion of the hearing and here repeat my reasons for doing so.

Mrs P A Symons JP
Special Adjudicator