Thavathevathasan 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	22 December 1993
Citation / Document Symbol	[1994] Imm AR 249
Cite as	Thavathevathasan v. Secretary of State for the Home Department, [1994] Imm AR 249, United Kingdom: Court of Appeal (England and Wales), 22 December 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b63f10.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.

THAVATHEVATHASAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 249

Hearing Date: 22 December 1993

22 December 1993

Index Terms:

Political asylum -- Sri Lankan -- arrived in United Kingdom from France -- claimed asylum -- application refused -- Secretary of State decided to remove him to France -- appeal to special adjudicator -- certificate by Secretary of State that claim was without foundation -- appeal dismissed -- whether Secretary of State obliged to make enquiries to ensure France would accept the applicant and consider claim on the merits -- whether the relevant immigration rules were ultra vires. Asylum and Immigration Appeals Act 1993 ss 1, 2, 8(1), 8(3), 8(5), 8(6), sch 2 para 5(1): Asylum Appeals (Procedure) Rules 1993 rr 4(1), 4(4): HC 725 paras 180B, 180D, 180K: United Nations Convention relating to the status of refugees 1951 (Protocol 1967) arts 31, 33, 35.

Held:

Renewed application for leave to move for judicial review following refusal by Latham J. The applicant was a citizen of Sri Lanka who arrived in the United Kingdom from France and claimed political asylum. The Secretary of State declined to consider the application on the merits and decided to return the applicant to France. An appeal to a special adjudicator was dismissed. The Secretary of State had issued a certificate that in his opinion the claim was without foundation.

On application for judicial review it was asserted that the adjudicator had acted improperly in reserving his determination so that he might "carry out some further research before making a decision", but had given no opportunity to the representatives to address him subsequently on any new material he had consulted. In fact while his phrasing was unfortunate and could lead to misunderstanding, it appeared that he was only referring to papers already in the bundles.

Counsel argued however that the relevant immigration rules, (and in particular HC 175 paragraph 180K) were ultra vires the enabling Act. She asserted, relying in part on the publications of the United Nations High Commissioner for Refugees, that the Secretary of State could not properly return an applicant to a third country without making enquiries to ensure that the applicant would be admitted and his claim substantively considered; to do otherwise was a breach of article 33 of the Convention.

Held

1. Neither HC 175 paragraph 180D nor paragraph 180K was ultra vires nor in breach of the United Kingdom's obligations under the Convention.

2. The Secretary of State had no obligation to make a direct enquiry of the third country to establish that the applicant's claim would be substantively considered there. His obligations under the Convention were discharged if he was satisfied on the information before him that the claim would be properly considered.

3. The Secretary of State was not bound by the opinions expressed by the office of the United Nations High Commissioner for Refugees, which opinions had no force in law: Bugdaycay followed.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250.

R v Secretary of State for the Home Department ex parte Mehari and ors [1994] Imm AR 151.

R v Secretary of State for the Home Department ex parte Jeyathasan Ramasany and Manickavasagar Thavathevathasan (unreported, QBD, 19 November 1993).

Counsel:

Miss S Harrison and S Knafler for the applicant; D Rose for the respondent.

PANEL: Glidewell, Nolan LJJ, Sir Tasker Watkins

Judgment One:

GLIDEWELL LJ: This is a renewed application for leave to move for judicial review of a decision of the Home Secretary made on 10 October 1993, refusing the applicant asylum, and also of a decision of a special adjudicator given on 3 November 1993, dismissing the applicant's appeal against the Home Secretary's decision. Leave was initially refused by Latham J on 19 November 1993.

The applicant is a citizen of Sri Lanka. He is aged 26. He is a Tamil. He arrived in the United Kingdom on 9 October 1993 on a flight from Lourdes in France. He immediately sought political asylum and applied in the alternative to be allowed to enter as a student.

The application on both grounds was refused. The application to enter as a student was refused because he had no visa, and that part of the application has not been pursued any further.

The asylum application was refused in a letter dated 10 October 1993, addressed to the applicant personally. It started by saying:

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

The letter then continued:

However, Sri Lanka is not the only country to which you can be removed. You arrived from France where, on your own admission, you spent 5 days, having previously spent almost two weeks in Spain and one month in Russia. You are, under 8(1)(c) of Schedule 2 of the Immigration Act 1971 returnable to France which is a signatory to the 1951 UN Convention relating to the Status of

Refugees.

The Secretary of State, on the basis of his knowledge of the immigration policies and practices of France, and on previous experiences in returning passengers to France has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention.

Paragraph 180K of the Immigration Rules provides that an application will normally be refused without substantive consideration if there is a safe third country to which the applicant can be sent. The Secretary of State can find no grounds for departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligation under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention."

The applicant appealed, as I have said, to a special adjudicator who dismissed the appeal on 3 November 1993. The application for leave to move for judicial review was made on 18 November 1993. It is made clear in the form of application that the challenge is both to the decision of the Secretary of State and the decision of the special adjudicator. It is said that in a variety of ways the special adjudicator erred in law. I shall come back to the detail later.

However, the major issue is as to the propriety of the Home Secretary's policy of returning an asylum seeker who has come via a third country (in this case France) to that country without considering the merits of his claim to asylum. There is a subsidiary point based on the wording of the adjudicator's decision.

It is necessary, first, to look at some of the relevant legislation and the rules. The Asylum and Immigration Appeals Act 1993, by section 1, defines a claim for asylum as:

". . . a claim made by a person . . . that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave the United Kingdom; and

'the Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention."By section 2 of the Act:

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

By section 8(1):

"8.-(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."

By subsection 6 of that section:

"Schedule 2 to this Act (which makes supplementary provision about appeals under this section) shall have effect; and the preceding provisions of this section shall have effect subject to that Schedule."

Turning to the second schedule, by paragraph 5(1), missing out words which are not relevant in this case:

"This paragraph applies to an appeal by a person under subsection (1) . . . of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation."

The Secretary of State did so certify at the end of his letter of 10 October. By sub-paragraph (3):

"For the purposes of this paragraph a claim is without foundation if (and only if) --

(a) it does not raise any issue as to the United Kingdom's obligations under the Convention; . . ."

Then by sub-paragraph (5):

"If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, section 20(1) of that Act [that is to say the 1971 Act] shall not confer on the appellant any right of appeal to the Immigration Appeal Tribunal."

In other words, if the special adjudicator agrees with the Secretary of State that the claim does not raise any issue as to the United Kingdom's obligation under the Convention, there is no further right of appeal from the special adjudicator. Hence, of course, the relatively quick application for judicial review.

The question, firstly, for the Home Secretary, and then for the special adjudicator can be expressed in these words: did the applicant's claim to asylum raise any issue as to the United Kingdom's obligations under the Convention?

Before coming firstly to the rules and then later to the Convention, I expand slightly the facts about the applicant's journey here, as set out in a chronology (usefully provided by Miss Harrison for the applicant, and as I understand agreed). They are that he left Sri Lanka on 25 August 1993 and travelled to Moscow. From there, on 20 September 1993 he travelled, apparently by train, to Spain. He left Spain on 4 October 1993 and went to Lourdes in France, and from there, five days later, he came to the United Kingdom.

I have already read the Home Secretary's letter of 10 October. The notice of appeal to the adjudicator, which was given on 15 October 1993, said that the grounds of appeal would be supplied later. But it seems that by the time of the hearing before the adjudicator no grounds had been supplied in writing. Nevertheless, the adjudicator considered the matters put before him by Miss Harrison, who appeared before him as she has before us.

The immigration rules which are relevant are an amendment of paragraph 180, in House of Commons Paper 251, which amendment was effected by House of Commons Paper 725, which came into force on 26 July 1993. By paragraph 180B:

"A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(a) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and

(b) he is a refugee, as defined by the Convention and Protocol; and

(c) refusing his application would result in his being required to go, (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

By 180D:

"An application which does not meet the criteria in paragraph 180B will be refused. The Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country does not raise any issue as to the United Kingdom's obligations under the Convention and Protocol. More details are given in paragraphs 180K and 180M."

We are only concerned with 180K. That has already been summarised in the Secretary of State's letter, but I think it is right to read it in full:

"If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the Government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

(a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection; or

(b) there is other clear evidence of his admissibility to a third country.

Provided he is satisfied that a case meets these critiera, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant."

The criterion in (b) is not relied on here. So the criterion upon which the Secretary of State was relying is (a), the Secretary of State maintaining that this applicant had arrived in the United Kingdom from France, not directly from Sri Lanka, and that whilst within the territory of France he had an opportunity to make contact with the French authorities in order to claim asylum from them.

I turn to the appeal to the special adjudicator. There was some submission before us as to the correct approach of the adjudicator on an appeal from the Home Secretary. It was said that there was an onus on the Home Secretary to establish the matters that he seeks to establish before the adjudicator, and it was further submitted in this case that he failed to do so.

Clearly the special adjudicator is not bound by the Home Secretary's certificate. In other words, he does not merely wield a rubber stamp. He must consider whether, on the material before the Home Secretary, and on any other material before him (if it is proper for him to admit any) the conclusion which the Home Secretary reached is justified. The adjudicator, in other words, is bound to consider the issue which he has to determine on its merits. That is so, even if the issue is whether there was material before the Home Secretary which justified him in saying that the claim to asylum did not raise any issue as to the United Kingdom's obligations under the Convention.

In this case the adjudicator heard evidence. He heard the evidence of the applicant given through an interpreter. He considered two issues: firstly, did the applicant have the opportunity to claim asylum in France? That was a necessary part of criterion (a) in paragraph 180K. On the evidence before him, including the oral evidence of the applicant himself, the adjudicator found that he was satisfied that the applicant had had such opportunity. He said at page eight of his determination:

"I find that I am in no doubt that the present appellant did have an opportunity to claim asylum whilst he was in France but since it was his intention to proceed to the United Kingdom to claim political asylum he did not even investigate that possibility."

In these proceedings there is no challenge to that finding, nor, in my view, on the material before the adjudicator, could a challenge succeed.

The second matter which the adjudicator considered (which is the area of the contest before Latham J and before us) is whether the Home Secretary's certificate was well-founded. In other words, was the Home Secretary justified in concluding that he could properly rely on the French authorities, if the applicant is removed to France, not to return the applicant to Sri Lanka without a proper enquiry into a claim for asylum made in France, as required by the Convention of 1951. As to this, the adjudicator said:

"It seems to me that what I have to consider is whether the Secretary of State's certificate issued under paragraph 5 of the 2nd Schedule to the 1993 Act is well-founded in that France, the country to which the Secretary of State proposes to remove the appellant, will not further remove the appellant to Sri Lanka, his country of nationality, without a proper enquiry in terms of the Convention . . ."

In answer to that question he says:

"I find that I am satisfied that any claim that the appellant may make for asylum would be considered by the French authorities or, alternatively, if the French authorities return the appellant to the United Kingdom, the Secretary of State would be required to take a further decision."

Clearly (and Miss Harrison does not suggest otherwise) these are the issues which properly arise on the application of rule 180K.

In this appeal I said that apart from the broad issue about the propriety of the Home Secretary's policy there is a subsidiary issue, which was raised by an amendment which we allowed to the grounds of appeal. In an earlier passage in his decision document, the special adjudicator dealt firstly with the first issue (that is to say whether the applicant had a reasonable opportunity to claim asylum in France) and then he turns to what he described as:

". . . the second part of Miss Harrison's submission on the question of whether France can be regarded as a safe third country. I announced that I wished to consider further what she had said and also to carry out some further research before making a decision on that issue. I therefore reserve my determination which I now deliver."

The point raised by Miss Harrison concerns the phrase "also to carry out some further research". She submits that if by that the adjudicator meant making some enquiry as to the facts, then, since he did not disclose the result of those enquiries to the parties and did not give them the opportunity to comment on them, he was not behaving fairly.

An adjudicator is under an obligation (as is anybody conducting a quasi-judicial process), not to rely upon any material which has not been before him at the time when he is considering his decision and being addressed by the representatives of the parties, and if he does obtain any further factual information, then he must give the parties an opportunity to comment on it. In particular, if what the adjudicator meant was that he was going to make some further enquiries about the practice of the French authorities then, clearly, he ought to have disclosed that to the parties before reaching his decision. As a general proposition, I agree that if that is what the adjudicator meant he was going to do, then he was under such an obligation. But the question is whether that is what he meant.

Miss Harrison who, as I have said, appeared before him, told us very properly and quite frankly that she did not actually remember him saying that he was going to carry out some further research. Indeed, I think she indicated that if he had actually used those words she would have queried them, she would at least have asked what it was he was going to do, and I am sure that that is correct.

At the conclusion of the hearing she simply had the impression from what the adjudicator said that he was going to reserve his decision in order perhaps to look again at the material that had already been put before him, and consider it in a little more depth than he had had the opportunity to do during the course of the hearing itself. If that is what he meant by the words he used, then there was nothing improper. Indeed, on the contrary, it is entirely proper, if he thought that the material before him demanded further consideration.

The material which was before him as to what was likely to happen in France was concerned included not merely the Secretary of State's letters containing his certificate, but also a document submitted on behalf of the applicant, which was prepared by the British section of Amnesty International, issued in July 1993 (and therefore relatively recent at the time of the hearing before the special adjudicator), entitled Passing the buck. It deals with the Home Office practice in safe third country asylum cases. It purports to contain brief details of a number of previous cases of applicants for asylum in this country who have been returned to other allegedly safe third countries, together with the results of what has happened to them there. Of course, it is all hearsay, but nobody has suggested that this document was not a matter properly to be taken into account by the adjudicator, and he made it clear that he did consider what it said.

What the document itself says so far as France is concerned is that there were two cases of people who, having claimed asylum in this country and having come via France, were returned to France. In one case it said that the French authorities refused to admit the applicant and returned him to the United Kingdom later the same day (no suggestion of sending him back whence he came -- whence he came was Zaire). In the case of the other man, who had come from Sri Lanka, the French authorities rejected his asylum claim. He managed to make his way back to the United Kingdom and on that occasion it is said that the Home Office agreed to consider his asylum claim substantively.

Miss Rose, for the Home Secretary, submits that it is clear from the wording of the adjudicator's decision that, to use his phrase, the "further research" that he wanted to do was into, particularly, the Amnesty International document. In the very next sentence to the one containing the words "further research", in the next paragraph he said:

"I have had careful regard to Miss Harrison's persuasive submission and I have considered in particular what has been said by Amnesty International in its publication 'Passing the buck'. However, I find that I cannot agree with Miss Harrison's submissions concerning the implications of the judgment of Laws J in the Mehari case by which I believe I am bound."

Then he went on to give his decision in the terms to which I have already referred.

Miss Rose submits that from the fact that the next immediately following paragraph refers to the Amnesty International document, it is clear that what the adjudicator was saying was in effect: I have not had time to look at this document in any detail: I am going to give myself time to do so. When he did so he found that what it contained was what I have already described.

Moreover, the requirement for the adjudicator to give an explanation for why he was reserving his decision and not merely saying, as, for instance, we should in this court say; "we are going to reserve judgment," is to be found in rule 11 of the Asylum Appeal Procedure Rules 1993, which provide by sub-rule (1):

". . . the special adjudicator shall, wherever practicable, pronounce the determination and the reasons therefor at the conclusion of the hearing."

It reinforces that in sub-rule (4), that:

"In an appeal to which paragraph 5 of Schedule 2 to the 1993 Act applies . . . if the special adjudicator agrees that the claim is without foundation, he shall at the conclusion of the hearing pronounce the determination and the reasons therefor . . ."

So, says Miss Rose, the adjudicator was under an obligation to give some explanation for reserving. It is clear that the explanation, again, was not a sinister one. I find a perfectly proper one in the circumstances.

For my part, although I do think that the words referring to "carrying out further research" are unfortunate, and could perhaps be regarded as misleading, it is now clear, having given the matter deeper consideration, that the adjudicator clearly did not intend to convey that he was going to try and find out some more factual information.

Certainly, he did not rely on any other factual information. He made his decision, quite clearly, upon the basis of material that was put before him at the hearing. Nothing else was before him at all, nothing else to which he refers. Therefore, although I thought it necessary to consider that issue in a little detail, I find that Miss Harrison's suspicions -- which I think is the right way of putting it -- are not justified.

I now turn to the second major issue, which really divides into two parts: as I have already indicated, I agree that the adjudicator was required to reconsider the Home Secretary's decision. Therefore, if he had evidence before him which apparently contradicted the assertion that the third country (France in this case) is a safe country in the sense that it would not send an applicant for asylum back to the country where he feared persecution without first going through a proper investigation of his claim to asylum, then the adjudicator was obliged to weigh that evidence and decide whether it apparently outweighed the Home Secretary's certificate; and if it did then he should quash the Home Secretary's decision and allow the appeal.

That I believe is the proper approach. But the evidence adduced by the applicant in this case, when considered did not achieve that. It might have achieved that in relation to some other countries to which the applicant or other applicants might be sent back, but in the cases reported relating to France, there was no apparent breach by the French authorities of their obligations. The worst that can be said is that they returned the first applicant to the United Kingdom. It may mean that he shuffled back and fro between the two countries, but that is not a breach of their obligations.

In the cases referred to relating to France, it seems that the criteria laid down in paragraph 180K of the House of Commons paper were satisfied. The applicant had not arrived in the United Kingdom directly from Sri Lanka and was held to have had the opportunity to seek asylum in France.

I come to what is now the central issue, which is one of principle, and that is Miss Harrison's submission that both paragraphs 180D and 180K of HC 251 as amended are in breach of the United Kingdom's obligations under the 1951 Convention, and thus conflict with section 2 of the 1993 Act.

Before I turn to the Convention, looking back at section 2 of the 1993 Act, there is no doubt that it does place the Home Secretary under an obligation not to adopt any practice which would be contrary to the Convention in the immigration rules. So, if it be shown that paragraphs 108D and/or 180K are contrary to the Convention, then it must follow that they contravene section 2.

There was some argument that section 2 gave added weight to the force of the Convention in the United Kingdom. Miss Rose for the Secretary of State submits, and submits accurately, that section 2 really does no more than put into statutory form an obligation on the Home Secretary which he already accepted before, and has done for some years, because paragraph 75 of the unamended House of Commons Paper 251 (which is dealing with persons claiming asylum) provides:

"The Home Office will then consider the case in accordance with the provisions of the Convention and Protocol."

So, as I say, it is correct that, by his own rules, the Home Secretary was accepting the obligation to have regard to the Convention and Protocol before section 2 came into force. Of course, the statute is of more significance than the rules, because it is a statute. But so far as the present case is concerned, I do not see that that makes any difference of substance or practice.

Miss Harrison's practical submission comes to this; before returning an asylum seeker to a third country which is alleged to be safe, the Home Secretary must at least establish -- and I think she submits by direct enquiry in relation to that country or of the responsible officers in that country -- that the government of that country will give proper consideration to an application for asylum made there by the asylum seeker.

In relation to this part of her submission, Miss Harrison referred us to article 35 of the Convention, the first part of which reads:

"The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention."

We are not here concerned with any question of supervision.

The material upon which Miss Harrison relies, which was not before the special adjudicator, but was put before Latham J as I understand it and is before us, is a document entitled The "safe third country" policy in the light of the international obligations vis-a-vis refugees and asylum-seekers, which is in fact an opinion of Mr Antonio Fortin, the senior legal officer of the London office of the United Nations High Commissioner for Refugees. There is no doubt that in the conclusion summary at the end of that opinion, Mr Fortin says:

"The removal of an asylum-seeker to a third country cannot legitimately take place unless the removing country has duly established that the third country:

(a) will admit the asylum seeker to its territory;

(b) will observe the principle of non-refoulement [which means not sending him straight back to the place where he fears persecution] and will generally treat the asylum-seeker in accordance with accepted international standards; and,

If that is intended to mean (as I think it is intended to mean) in relation to this particular applicant, satisfy itself specifically in relation to his claim in another country, then it is an expression of opinion but no more. What is said is that if the Home Secretary does not adopt that practice, then he is failing to co-operate with the office of the United Nations High Commissioner for Refugees.

Miss Rose, quite properly, submits that that opinion has no binding force. It is similar in this respect to a handbook published by the United Nations High Commissioner for Refugees in 1979 to which Lord Bridge referred in his speech in Bugdaycay [1987] AC 514 p 524 as:

"having no binding force either in municipal or international law."

That particular passage in Lord Bridge's speech was referred to by Laws J in an unreported decision in ex parte Mehari. He concluded, on exactly the same basis as Lord Bridge had decided, that the expression of opinion by Mr Fortin had no binding force. I entirely agree with Laws J. In other words, I do not regard the Home Office disagreement with the requirement which that opinion expresses to make express enquiry of a third country as being a breach of article 35 of the Convention. In the Home Secretary's view, his obligations under article 35 are satisfied if he is satisfied that the safe country is one which will consider the application for asylum properly. If, as may sometimes happen, the result is that the applicant is returned to the United Kingdom, then it means no more than that the Home Secretary at that stage must reconsider afresh, and will certainly not be able then to say: well, I can send him back to France (if that is the relevant country) again, without further enquiry.

Miss Harrison also sought to rely on article 31 of the Convention, which starts:

"1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into the other country."

But that article all refers to refugees who come directly from a territory where their life or freedom was threatened, (as after some little discussion during the course of argument Miss Harrison conceded) and does not apply to the case of this applicant and, therefore, there can be no breach in the case of this applicant of that article.

In my view the principal obligation on the Home Secretary in relation to the facts of this case is to comply with article 33:

"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

By returning him to France, the Home Secretary is not in breach of article 33. I, therefore, conclude that paragraphs 180D and 180K of House of Commons Paper 251 as amended do not transgress the obligation in section 2 of the 1993 Act, and thus were properly made within the powers of the Immigration Acts. For those reasons, I agree with Latham J that this application must fail, and I would refuse it.

Judgment Two:

NOLAN LJ: I agree and have nothing to add.

Judgment Three:

SIR TASKER WATKINS: I agree and I too have nothing to add.

DISPOSITION:

Application refused

SOLICITORS:

Sriharans, Southall, Middlesex; Treasury Solicitor