Balbir Singh, Gurmail Singh, Parmjit Singh, Hardeep Singh, Satpal Singh 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 May 1992
Citation / Document Symbol	[1992] Imm AR 426
Cite as	Balbir Singh, Gurmail Singh, Parmjit Singh, Hardeep Singh, Satpal Singh v. Secretary of State for the Home Department, [1992] Imm AR 426, United Kingdom: Court of Appeal (England and Wales), 5 May 1992, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b64020.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.

Court of Appeal (Civil Division)

[1992] Imm AR 426

Hearing Date: 5 May 1992

5 May 1992

Index Terms:

Political asylum -- illegal entry by applicants -- arrived clandestinely in United Kingdom from Germany -- applications for political asylum in Germany not yet determined -- on discovery applications for political asylum made in United Kingdom -- Secretary of State declined to grant asylum -- directions for removal to Germany where applicants feared persecution from non-government groups -- whether in adopting the criteria laid down against refoulement the Secretary of State applied too high a test -- whether in such circumstances the Secretary of State should grant applicants exceptional leave to remain. United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art 33: European Convention on Human Rights art 3.

Held:

Renewed application for judicial review following dismissal by Potts J. The five applicants were Sikhs who after applying for political asylum in Germany, had entered the United Kingdom clandestinely and then claimed political asylum here. The Secretary of State had decided to return them to Germany. In reaching that conclusion he followed the principles laid down in the Convention, relating to refoulement: that prohibited the return of a person claiming asylum to any country where his life or freedom would be threatened, for a Convention reason.

Counsel argued that that was too high a test. The applicants feared persecution from hostile non-government groups in Germany. The Secretary of State should have had regard to article 3 of the European Convention on Human Rights, which provided protection inter alia from "inhuman or degrading treatment". Persons in the position of the applicants should be given exceptional leave to remain in the United Kingdom.

Held

1. The Secretary of State had no duty to accord a lower test to persons in the circumstances of the applicants.

2. The applicants did not face persecution by the standards of the Convention if returned to Germany.

3. The Secretary of State had not erred in declining to give the applicants exceptional leave to remain in the United Kingdom.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Balbir Singh and ors (unreported, QBD, 30 April 1992).

Counsel:

M Gill for the applicants; N Garnham for the respondent

PANEL: Dillon, Neill, Staughton LJJ

Judgment One:

DILLON LJ: Mr Gill renews in this court on behalf of Mr Balbir Singh and four other men, all by origin from India, applications for leave to move for judicial review which were rejected by Potts J on 30 April. The position is that these five men were found in this country near the M4, near Heston, Middlesex on 22 March 1992. They had shortly before that been seen climbing out of the back of a lorry and it is plain that they were illegal entrants to this country. They had come separately from India to Germany and had claimed, on arrival at Frankfurt, political asylum under the United Nations Convention of 1951 relating to the status of refugees.

After making that claim they were housed in camps in Germany while the claim was being considered, and none of their claims has yet been ruled on by the Germany authorities. However, Mr Balbir Singh at any rate seems to have had fears that his claim for asylum in Germany would not be accepted because the claims of other people had been refused. In addition, each of them found in Germany hostility to asylum seekers and entrants from Third World countries in the local population, and particularly with the members of neo-Nazi parties and organisations of the extreme right-wing in Germany, who objected to auslanders settling in Germany. Therefore each of the present applicants separately left Germany and in Holland was picked up by prior arrangement by this lorry in which they travelled concealed into England and got out of the lorry, as I have said, near Heston.

They were then examined by an immigration officer at Hounslow Police Station on 23 March and were retained in custody in prisons in this country while their situation was considered. The first interview was particularly concerned with how each of them had travelled to the United Kingdom, and Mr Balbir Singh at any rate was told that there would be a further examination in relation to his circumstances in Germany if he was wanting to found an asylum claim on those.

The Secretary of State refused to allow them to remain in this country and gave notice that they would be returned to Germany as illegal entrants; that notice was 31 March. After that however there was a further interview in which each of them had the opportunity to explain about any particular difficulties in Germany and on 24 April, after the further interviews, the Secretary of State wrote a letter from the Asylum Division of the Home Office in which it said:

"The Secretary of State has now considered the records of those interviews. Having done so, however, he sees no reason to reverse his decision -- [this is to the solicitors] -- that your clients should be returned to Germany as that country is not one in which their lives or freedom would be threatened for one of the reasons listed in the 1951 United Nations Convention relating to the Status of Refugees. This is in accordance with the statement of policy made by the then Home Secretary in a written answer on 25 July 1990."

That answer of 25 July 1990, made by Mr Waddington, the then Home Secretary, refers to the general "intentionally accepted concept that a person fleeing persecution, who cannot avail himself of the protection of the authorities of a country of which he is a national, should normally seek refuge in the first safe country reached", and the Secretary of State expressed his entire agreement with that concept and that "The Convention's primary function is to give refugees who cannot turn to their own authorities the protection of the international community. It is an instrument of last resort -- not a licence for refugees to travel the world in search of an ideal place of residence".

The Convention to which the United Kingdom is committed provides that:

"no refugee will be moved . . . to a territory in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Mr Gill, appearing for the applicants, has described that as a very high test for asylum. What he submits primarily is that the Secretary of State should consider in any individual case whether a lower test should be applied, a lower test of threat to safety in the country to which it is proposed to return a claimant for asylum, and should consider also whether exceptional leave should be granted in any case in which a person claims entry to this country. Mr Gill also submits that the Secretary of State should consider in any case also article 3 of the European Convention on Human Rights which states that "no person shall be subjected to torture or to inhuman or degrading treatment or punishment" and he says that there is a risk that if these applicants are returned to Germany they may be exposed to degrading treatment, not at the hands of the German authorities but at the hands of those members of the public in Germany who object to the presence of auslanders in Germany.

It is the unfortunate fact that in very many countries there is objection by various groups in the local population to the admission of refugees from the different cultures of the Third World. The instance raised in this case involves Germany, but it could apply equally to France or Italy in the light of right-wing views expressed there, and objection to the flooding of the country by immigrants coming from North Africa. It could equally apply to England because, unfortunately and contrary to the law, there are occasions of degrading treatment being accorded to Third World immigrants to this country who have been duly allowed in by the administration processes or who indeed are the children born here of immigrants to this country. We have an instance in our list for this week, not in the field of immigration but in the field of local authority housing.

I cannot see that the Secretary of State owes any duty to accord a lower test to people coming in and seeking asylum here when he is considering whether, in accordance with the established practice, they should be returned to the country where they first claimed asylum. It seems to be becoming increasingly the practice for people who have duly claimed asylum in the country where they arrived first from their country of origin, then to decide that, rather than wait for the outcome of that claim, they will pass on to some other country and claim asylum there on the footing that they would be under threat if admitted to the country of their first choice. I do not see it as consistent with the policy declared by Mr Waddington in Parliament that the Secretary of State should be bound to assist people to take that course.

Accordingly, I would not hold that there is any duty on him to consider, as it were in the form of a game of snakes and ladders, whether a lower test should be accorded to these people or whether article 3 should be applied so as not to warrant their return to Germany, France or Italy or wherever it may be, or whether exceptional entry should be permitted. Only last Firday it appears that another division of this court, of which Neill LJ was a member, had a similar application which was refused where somebody from Zaire had made his way to Belgium and claimed asylum there and had then come on to this country, and claimed asylum here on the footing that he feared the attitude of members of the local community in Belgium to him as a refugee from Zaire.

In my judgment the Secretary of State has accorded these applicants the fullest consideration and there is no basis shown in any case for any further consideration or any further delay in returning these applicants to Germany. They do not face persecution by the standards of the Convention if returned to Germany. The other factors have been put to the Secretary of State. That he has not dealt with them specifically does not mean that, if something had struck him as warranting treatment as an exceptional case, he would not have accorded it exceptional treatment. I see no reason why he should have done any more than he has done.

I would refuse these applications.

Judgment Two:

NEILL LJ: I agree.

Judgment Three:

STAUGHTON LJ: I can detect no special circumstances peculiar to Mr Balbir Singh or any of his co-applicants which required the Secretary of State to depart from his general policy as to asylum seekers. There is no ground for the suggestion that he should have applied a lower test, or for the suggestion that to return Mr Balbir Singh or the co-applicants would amount to the infliction of torture or inhuman or degrading treatment within article 3, or for considering that in these cases exceptional leave to remain should be given.

Accordingly, I agree that the applications should be dismissed.

DISPOSITION:

Applications dismissed

SOLICITORS:

Lloyd Brennand & Co, Brentford: Treasury Solicitor.