Ghebretatios v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	5 July 1993
Citation / Document Symbol	[1993] Imm AR 585
Cite as	Ghebretatios v. Secretary of State for the Home Department, [1993] Imm AR 585, United Kingdom: Court of Appeal (England and Wales), 5 July 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6251c.html [accessed 5 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.

GHEBRETATIOS v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 585

Hearing Date: 5 July 1993

5 July 1993

Index Terms:

Political asylum -- citizen of Ethiopia -- arrived in United Kingdom from France -- Secretary of State refused to consider application on the merits -- proposed to return applicant to France in accordance with ministerial policy -- whether that policy, reflecting the terms of the Dublin Convention, was contrary to the provisions of the EC Treaty (as amended). European Economic Community Treaty 1957 art 8A; Dublin Convention 1990 arts 6, 13: HC 251 paras 21, 75.

Held:

Renewed application for leave to move for judicial review after refusal by Hidden J. The applicant was a citizen of Ethiopia who had arrived in the United Kingdom via the Sudan, Italy and France: on arrival in the United Kingdom he claimed political asylum. The Secretary of State refused to consider the application on the merits and proposed in accordance with his stated policy, to return the applicant to France.

Counsel argued that the ministerial policy which reflected the terms of the Dublin Convention was contrary to the provisions of the European Economic Community Treaty, as amended by the Single European Act.

Held

1. It was clear that the Dublin Convention had been negotiated by Member States with specific reference to the Single European Act and its effect on the European Economic Community Treaty.

2. The Member States could not possibly have intended in the Dublin Convention to agree to a detailed policy inconsistent with the amendments to the European Economic Community Treaty.

3. Article 8A of the European Economic Community Treaty in no way restricted the Secretary of State from following a policy which reflected the terms of the Dublin Convention.

4. The court did not decide whether article 8A had an automatic legal effect on which individuals could rely.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Daniel Ghebretatios (unreported, QBD, 2 July 1993).

Counsel:

M Supperstone QC and D O'Dempsey for the applicant; R Plender QC and M Shaw for the respondent.

PANEL: Sir Thomas Bingham MR, Steyn, Hoffman LJJ

Judgment One:

SIR THOMAS BINGHAM MR: This is a renewed application for leave to move for judicial review following refusal of leave by Hidden J on Friday 2 July.

The facts which give rise to the application are these. The applicant, Daniel Ghebratatios, is a refugee from Ethiopia who while resident in that country was an active member of the Eritrean Liberation Front. He says for reasons of his own personal safety he left Ethiopia in December 1991 following the accession to power of a government radically opposed to the body of which he had been a member. He therefore, so he says, fled in the first instance to the Sudan where he stayed until 20 June 1993. On that date he left the Sudan and made his way to Italy which he entered on 20 June on a false Sudanese passport supplied by the Ethiopian body of which he had been a member. While in Italy he obtained Italian identity papers in a false name. He spent two days in Italy and thereafter travelled to the United Kingdom by train, passing through France in the course of that journey. He arrived in Dover on 24 June 1993 and his entry papers were there recognised to be false. He was, of course, an illegal entrant to the United Kingdom since he was using false Italian identity documents. However, when that came to light he claimed political asylum and the Secretary of State served notice on 24 June which read:

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

However, Ethiopia is not the only country to which you can be removed. You arrived from France where you spent one day. You are, under paragraph 8(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 re-admitted there.

Moreover, France 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 France and having considered the individual circumstances of your case, the Secretary of State is satisfied that the French authorities would not further remove you to Ethiopia without first considering, in accordance with its obligations under the 1951 UN Convention, any application you may make for asylum in that country.

In these circumstances, your application for asylum here has not been considered."

The applicant moved to challenge that ruling by way of judicial review and it was that application which Hidden J refused on Friday.

In very, very general terms the background to the application is this. The United Kingdom is a party to the 1951 UN Convention. It has declared its policy in relation to asylum matters in paragraphs 21 and 75 of HC 251. Paragraph 75 envisages that in appropriate cases an applicant for asylum may be returned to the country from which the applicant came provided that is not the country in which the applicant alleges a well-founded fear of persecution. The practice has in the past been that if an applicant arrives in this country and claims asylum, having come not from the country where he feared persecution but from an intervening third country, the application would not be considered here but the applicant would be returned to the intervening third country provided that country was one where his application would be appropriately and fairly considered and not a country which would return him without investigation to the country from which he had originally come.

The particular provision which gives rise to the applicant's application to this court is article 8A of the European Economic Community Treaty which was added to the original terms of the treaty by the Single European Act. Article 8A reads:

"The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992 in accordance with the provisions of this article and of articles 8B, 8C, 28, 57(2), 59, 70(1), 84, 99, 100A and 100B and without prejudice to the other provisions of this Treaty.

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty."

It is submitted by Mr Supperstone, who argues the matter very clearly and cogently on behalf of the applicant, that the effect of this new article is to prohibit any restraint by a Member State on the entry of anyone arriving in its territory from another Member State of the Community. That, he submits, is the result of abolishing internal frontiers and he submits that the effect of that is to prevent any country in which an application for asylum is made from requiring the applicant for asylum to return for purposes of consideration of his application to another Member State of the Community from which he travelled to the Member State where the application is made.

In support of that submission Mr Supperstone refers to a communication by the Commission of the European Communities in which they set out their understanding as to the proper construction of article 8A.

The contrary submission which is made on behalf of the Secretary of State rests for its first objection on the argument that article 8A of the European Economic Community Treaty does not impose on a Member State the obligation to consider an application for asylum made by a person who arrived via one or more other Member States. Put less precisely and accurately than Mr Plender has put his argument, the point is that article 8A (preventing countries from imposing border controls to restrict the entry of nationals of other Member States) has nothing to do with the entirely separate jurisdiction which Member States have, and have exercised, in respect of applications for asylum. That the two jurisdictions are quite different, Mr Plender submits, is made quite plain by the fact that the Member States of the European Community have negotiated, although not as yet ratified or implemented, a Convention, the object of which is to determine as between themselves which is the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. It is right to point out that the preamble to this Convention makes plain that it was negotiated with specific reference to the Single European Act from which article 8A derives. When one turns to article 6 of the Dublin Convention one finds the following:

"When it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-Member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum.

That State shall cease to be responsible, however, if it is proved that the applicant has been living in the Member State where the application for asylum was made at least six months before making this application for asylum. In that case it is the latter Member State which is responsible for examining the application for asylum."

Article 7(1) provides:

"The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member State, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum."

Our attention has also been drawn to article 13 which regulates the circumstances in which an applicant for asylum shall be taken back to the Member State from which he came.

It appears to me abundantly plain, and indeed plain beyond argument, that when negotiating the Dublin Convention, albeit, as I have said, it has not been fully ratified or implemented as yet, the Member States of the European Community were well aware of their obligations under article 8A of the European Economic Community Treaty as amended and cannot possibly have intended to agree a detailed regime which was inconsistent with that article. The conclusion accordingly is, in my judgment, that the asylum regime, although not fully agreed, is that which is represented by HC 251 as modified by the Dublin Convention in so far as the United Kingdom has indicated an intention to abide by it and that article 8A in no way infringes or restricts the following of that course by the Secretary of State. That conclusion is, in my judgment, fatal to the argument which Mr Supperstone seeks to advance and it is unnecessary for me to go on to consider the second objection upon which the Secretary of State relies which is that article 8A does not in any event have an automatic legal effect on which individuals can rely against Member States. That argument also may be soundly based (and certainly it has some authority to support it) but for my part I find it unnecessary and undesirable to express a view on it. I am, however, satisfied that the application is one to which this court cannot properly accede and I, for my part, would refuse leave to move.

Judgment Two:

STEYN LJ: I agree.

Judgment Three:

HOFFMANN LJ: I agree.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London, EC1; Treasury Solicitor