R v. Immigration Appeal Tribunal, Ex parte Kolev

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	23 June 1992
Citation / Document Symbol	[1992] Imm AR 528
Cite as	R v. Immigration Appeal Tribunal, Ex parte Kolev, [1992] Imm AR 528, United Kingdom: High Court (England and Wales), 23 June 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63324.html [accessed 4 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v IMMIGRATION APPEAL TRIBUNAL ex parte KOLEV

Queen's Bench Division

[1992] Imm AR 528

Hearing Date: 23 June 1992

23 June 1992

Index Terms:

Political asylum -- citizen of Bulgaria -- applicant had arrived in United Kingdom from Belgium after travelling across Europe -- applied for asylum on arrival -- Secretary of State refused to consider application on its merits -- proposed to return applicant to Belgium -- applicant had asserted he had been refused asylum in Belgium -- whether on the evidence the Secretary of State and the Tribunal had been entitled to reject that claim -- whether, as the adjudicator had found, the applicant had a legitimate expectation that the Secretary of State would consider the application on its merits. Immigration Act 1971 sch 2 para 8(1)(c) HC 251 para 75.

Held:

The applicant for judicial review was a citizen of Bulgaria who had secured entry clearance as a visitor: immediately upon arrival in the United Kingdom, he claimed political asylum. He had travelled across Europe by motor car and had embarked for the United Kingdom in Belgium. The Secretary of State refused to consider his application on the merits and proposed in accordance with his publicly stated policy, to return him to Belgium. The applicant asserted that he had applied for asylum in Belgium and had been refused: the evidence for that was vague and curious in that the applicant stated he had made the application in Utrecht. An adjudicator allowed an appeal, holding that the applicant had had a legitimate expectation that the Secretary of State would consider his application on the merits.

The Tribunal allowed an appeal by the immigration officer. It held that the applicant had had no legitimate expectation that his application would be considered on the merits. It also rejected the assertion by the applicant that he had unsuccessfully claimed political asylum in Belgium.

On application for judicial review, counsel argued that the Tribunal had erred in reversing the adjudicator's findings on credibility.

Held

1. The Tribunal had not erred in its approach to the evidence. It had not reversed any findings on credibility: it had concluded that the evidence before the adjudicator was insufficient for him to come to the conclusion to which he had come.

2. The Secretary of State was not obliged to entertain an application for asylum or prevented from returning the applicant to the safe country whence he had come "merely because the applicant asserts that in some way, at some stage, and to somebody in that country, he had made what he considers to be an application for political asylum which was refused."

3. The case had nothing to do with legitimate expectation.

Cases referred to in the Judgment:

Immigration Appeal Tribunal v Khalid Hussain [1990] Imm AR 51.

Counsel:

VC Kothari for the applicant; I Ashford-Thom for the respondent

PANEL: Hutchison J

Judgment One:

HUTCHISON J: This is an application for judicial review by Mr Kolev nominally in respect of a decision of the Immigration Appeal Tribunal dated 22 April 1992. In reality what is in issue is the propriety of the decision of the Secretary of State, in December 1990, to refuse to consider the applicant's application for political asylum, in accordance with well-known ministerial policy, because the applicant had passed through, among other countries, Belgium and should therefore, the Secretary of State determined, have made his application there and should accordingly be returned to Belgium.

He arrived in this country on 8 December 1990. He had a visa which he had obtained in Bulgaria. He made no bones about informing the immigration officer that he had obtained the visa by deception, namely, by asserting that he wished to come as a visitor to the United Kingdom, when in fact his intention at the time was to come here to seek political asylum. That, I say in parenthesis, gave rise to a subsidiary and, I consider, unnecessarily complicated element of the case to do with the immigration officer's refusal of entry because of the deception. That has figured in appeals to the adjudicator and to the Immigration Appeal Tribunal, but it seems to me for present purposes it is beside the point and I shall not mention it again.

What the applicant did do at the same time was to apply for political asylum. I need say nothing about the merits of that application about which I know little because, as I have said, his application was never considered. The Secretary of State giving his reasons for refusal said in the explanatory statement:

"You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear . . .

However, Bulgaria is not the only country to which you can be removed. You arrived from Belgium where you spent one day." I should have said that the applicant was travelling by car.

"You are under paragraph 8(1)(c) of schedule 2 of the Immigration Act 1971 properly returnable to Belgium and I am satisfied on the information available that you will be re-admitted there.

Moreover Belgium is a signatory to the 1951 UN Convention relating to the status of refugees, and on the basis of the information available to him about the policies and practice of Belgium and having considered the individual circumstances of your case, the Secretary of State is satisfied that the

Belgian authorities would not further remove you to Bulgaria without first considering in accordance with its obligations under the 1951 UN Convention, any application you may make, for asylum in that country."

The information before the Secretary of State on the basis of the evidence provided by the immigration officer was that the applicant spoke good English, understood his questions, and there was no mention of an application for political asylum having been made in Belgium.

There then followed a letter from Simons Muirhead and Burton (the solicitors then acting) in which they indicated on 15 February that, having taken detailed instructions with the aid of an interpreter, it was apparent that their client was refused a right to enter the countries he had passed through on the way to the United Kingdom and was therefore not in a position to seek asylum in any one of those countries. They further disputed the fact that he spoke good English.

An appeal was brought, apparently, against both findings -- the refusal of leave to enter and the refusal to entertain the asylum claim -- and that was heard and determined by the adjudicator on 29 July 1991. In the course of that determination the adjudicator heard oral evidence, with the advantage of an interpreter, from the applicant.

One finds the material part of that evidence on the issue I am concerned with summarised at page two in these terms:

"I left immediately after the refusal" -- that is, of asylum -- "in Munich and we continued for Belgium via Luxembourg. In Belgium I went to the police station in, I think, Utrecht. It was near the frontier between Holland and Belgium. I had troubles with my car. At this stage I went to seek political asylum but they laughed at me. I said I could not go back to Bulgaria. My car was in a pitiful state. I said I wanted to seek political asylum. They refused me and told me to go immediately to England, since I had a visa for England. I repaired the car . . ."

He arrives in Dover. It is material perhaps to note in passing that in paragraph 4 there is recorded the fact that he was asserting that it was untrue that he spoke good English. "I could only ask for water in English." The suggestion was that English was virtually absent so far as he was concerned.

The adjudicator reached a decision which is set out at paragraph eight, in which he says:

". . . as I have already indicated, the appellant gave a credible account at the hearing of his journey by car across Europe from Bulgaria. I accept his evidence that, at the time of that journey -- and indeed before embarking on it -- he just wanted to stay in any western country on the way which would take him, but none did so. It follows that I consider that the first appellant had a legitimate expectation that the respondent would consider his application for political asylum since he had not ceased to be in transit in the countries through which he had passed on his way from Bulgaria . . . The current position of the Dublin Conventon (For the Dublic Convention see [1990] Imm AR 604 et seq) was rightly acknowledged by the representatives to the parties. I did not find that articles 5 or 7 of that Convention to be of much assistance in this case but article 3(1) and (3) and paragraph 75 of HC 251 require the respondent to consider the case in accordance with the provisions of the 1951 Convention and the 1967 Protocol relating to the status of refugees. This appeal is allowed to that extent in accordance with the Immigration Act 1971 section 19(1)(a)(i). The respondent was not acting correctly when he refused to consider the political asylum application so in accordance with section 19(3) of the same Act I direct that the respondent should do so and that this appellant has a right of appeal against the decision of the respondent if he should refuse the appellant's application for political asylum in the United Kingdom."

Mr Kothari says this case is about legitimate expectation. I say, with respect to the adjudicator (as the Immigration Appeal Tribunal later said in different terms), that it is impossible to see how legitimate expectation could arise at all in this case. It had nothing whatever to do with it. That however seems to have been the basis of the decision, together with the finding that the applicant had not ceased to be in transit in the countries through which he passed. As to that finding, it is equally impossible, I think, to discover arguments which could support it.

Against that decision there was an appeal by the immigration officer, and the Immigration Appeal Tribunal reversed the conclusions of the adjudicator. They said at page six:

"We do not consider that the respondents had any legitimate expectation that the Secretary of State would consider their applications for political asylum. This could not arise simply because the respondents had not ceased to be in transit in the countries through which they passed on their way from Bulgaria. This could only have arisen if the Secretary of State had given the respondents some grounds for such an expectation. He had not and the most the respondents had was a hope."

Then, in a passage on which Mr Kothari particularly relies, they say this at page nine:

"With respect to the adjudicator and his finding on credibility, it seems to us that the respondent's facility in English must have been sufficient to answer the questions put to him by the immigration officer. We also consider there was insufficient evidence for the adjudicator to conclude that the respondent had attempted to secure political asylum in the countries he passed through. He passed through these at day intervals, armed with his entry clearance for this country."

They go on:

"In the result, we find that there had been false representations employed for the purpose of obtaining the visas" -- that is incontrovertible but for present purposes, as I have said, irrelevant -- "in that the respondents were not proposing to go simply as visitors but rather to seek political asylum on arrival here. The immigration officer was therefore justified in being satisfied to that effect and in therefore refusing the respondents leave to enter under paragraph 17, having resumed her examination of the respondent, following the Home Office decision under paragraph 75."

It is a little difficult to see what precisely, if anything, the Immigration Appeal Tribunal were deciding in relation to the Secretary of State's decision not to entertain the application for asylum. Mr Kothari's main argument involves an attack on that passage in which aspersions are cast upon the views expressed by the adjudicator on the issue of credibility. In that connection he has helpfully referred me to the decision of the Court of Appeal in the case of Khalid Hussain [1990] Imm AR 51. I need not cite extensively from that authority which supports the general proposition at page 59:

". . . there may be circumstances in which the Tribunal ought not to reverse a finding of primary fact which depends upon the credibility of a witness without having the same opportunity to assess the evidence as the adjudicator, unless of course it is a clear and obvious case". That, if I may say so, is obvious good sense. Mr Kothari argues that here the Immigration Appeal Tribunal have reversed the findings of the adjudicator on an important issue of credibility, namely, the question whether the applicant sought political asylum, and incidentally on the level of his English. Implicit in Mr Kothari's argument is the suggestion that that finding on credit is in some way decisive to the allowing of the appeal.

In my judgment, and as Mr Ashford-Thom submits, neither of those propositions is made out. First of all it seems to me that the Immigration Appeal Tribunal is not making a particular point about credibility in the first of these sentences relied upon, that beginning "With respect to the adjudicator", but it is simply, in passing, expressing the view that it really does seem difficult to believe that the applicant was as inept in the English language as his evidence suggested, given the fact that there had been an interview with him in English.

As to the second sentence, that beginning "We also consider", it seems to me that the proper construction of that is not that it amounts to a rejection by them of evidence accepted by the adjudicator but that it amounts to their assessment of the effect of the evidence accepted by the adjudicator; they are saying that even on the basis of that evidence it was insufficient for him to conclude that the applicant had attempted to secure political asylum in Belgium.

One can understand why. The evidence was vague. What he said about the nature of the application was vague. It was made to a police station in a place which he was not even able to identify, save that he thought it was Utrecht, which is not in Belgium at all. Altogether it was evidence of a vague and insubstantial character.

There is nothing in the Immigration Appeal Tribunal's decision which leads one to suppose that the result turned upon their view of the applicant's credit. On the contrary, it turned upon their view of the illegitimacy of the reasoning adopted on the issue of legitimate expectation by the adjudicator. If there was (and I am inclined to think, as Mr Ashford-Thom submits, that there was not) some procedural impropriety, it appears to me to be irrelevant to the true issues that arise in this case. Those issues I consider to be as follows.

Can it be said that the Secretary of State, faced with an application for asylum, may not refuse to entertain it and instead decide to send the applicant back to the last country from which he came, merely because the applicant asserts that in some way, at some stage, and to somebody in that country, he had made what he considers to be an application for political asylum which was refused? Mr Kothari has cited no evidence to support the proposition that that is the law. Mr Ashford-Thom submits that it is not.

In my judgment, Mr Ashford-Thom is correct. It would be extraordinary, as it seems to me, if ministerial policy, which is well established and which involves the returning of asylum seekers to a friendly third country where they could first have sought asylum, could be frustrated by any sort of assertion that an application had been made and refused there. One only has to reflect upon it to realise that the attitude of the authorities when faced with a formal application, at a major port, by a person who, in accordance with international convention is returned by the government of the state to which he had later gone, may be very different from the attitude of a policeman in a remote police station in some small town. One would expect that responsible authorities in such countries would act as one imagines responsible authorities here would -- that they would be sensible of their duties under the Convention and to conform with them. In those circumstances I reject the implicit argument -- which at the end of his submissions became explicit -- advanced by Mr Kothari that the mere fact that the applicant had made the sort of application which his evidence summarised in the adjudicator's decision indicates he had made debars the Secretary of State from refusing to entertain his application and returning him to Belgium.

That is the substance of this application for judicial review and it seems to me that it does not raise an arguable case. I would accordingly refuse leave.

I should just mention that as a long stop Mr Kothari advanced a further argument that the applicant had by now been here for a very long time and that it would therefore be unfair and/or pointless to send him back to Belgium because he would inevitably be returned here. I cannot accept that argument for substantially the same grounds as I have already given. One does not know what the attitude of the Belgium authorities will be. One imagines that, if they are informed that the reason for the delay is prolonged proceedings in the United Kingdom, they will be unlikely to take an arbitrary course such as immediately returning the applicant. At all events it seems to me that the mere fact of lapse of time could not be a ground for my granting leave which otherwise I consider to be inappropriate.

DISPOSITION:

Application dismissed

SOLICITORS:

Clifford Watts, London N1; Treasury Solicitor