Jafar 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	13 June 1994
Citation / Document Symbol	[1994] Imm AR 497
Cite as	Jafar v. Secretary of State for the Home Department, [1994] Imm AR 497, United Kingdom: Court of Appeal (England and Wales), 13 June 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6a110.html [accessed 22 October 2022]
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.

JAFAR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 497

Hearing Date: 13 June 1994

13 June 1994

Index Terms:

Political asylum -- arrival of Bangladeshi from the Netherlands -- application for asylum refused -- Secretary of State concluded the Netherlands was a safe third country -- "without foundation" appeal dismissed by special adjudicator -- effect of Dutch Aliens Act -- whether adjudicator's conclusions unreasonable.

Held:

Renewed application for leave to move for judicial review following refusal by Latham J. The applicant was a citizen of Bangladesh who had arrived in the United Kingdom via Singapore and the Netherlands. He had claimed political asylum. The Secretary of State refused the application: he concluded the Netherlands was a safe third country and characterised the application as without foundation.

On appeal to a special adjudicator it was argued that in the light of the provisions of the Dutch Aliens Act it was likely that the applicant would be sent in turn to a third country if he were returned to the Netherlands. The special adjudicator concluded that the Secretary of State had shown by the documentation he had been required to produce, that the Netherlands was a safe third country. Before the Court of Appeal that matter was further argued and counsel suggested that the applicant might well be returned to Singapore, which not being a signatory to the United Nations Convention should not be regarded as a safe third country.

Held

1. Although there had been argument on the precise meaning of the Dutch Aliens Act, it appeared (as concluded in Amalanathan) that the authorities in the Netherlands, if disinclined to deal with the applicant's case on the merits, would return him to the United Kingdom.

2. The possibility of the applicant being returned to Singapore was entirely hypothetical.

3. The special adjudicator's determination could not be successfully attacked on Wednesbury principles.

Cases referred to in the Judgment:

R v Secretary of State for the Home Departmet ex parte Muthaiyan Amalanathan (unreported, QBD, 13 May 1994).

R v Secretary of State for the Home Department ex parte Mohammed Jafar (unreported, QBD, 9 June 1994).

Counsel:

N Blake QC for the applicant; Miss A Foster for the respondent

PANEL: Sir Stephen Brown, P, Rose, Millet LJJ

Judgment One:

SIR STEPHEN BROWN P: This is a renewed application for leave to move for judicial review following the refusal of leave by Latham J on 9 June, that is to say last week. The notice of motion seeks orders of certiorari and mandamus in relation to a decision of the Secretary of State for the Home Department of 20 March of this year and also in respect of the decision of a special adjudicator on 13 May of this year, whereby in each case the applicant was refused (in the first place by the Secretary of State) leave to enter the United Kingdom and a certification that the applicant's claim to asylum was without foundation. He also seeks to move in respect of the special adjudicator's decision of 13 May 1994, to reject his appeal against the decision of the Secretary of State.

The matter arises in this way. The applicant is a citizen of Bangladesh. He was discovered by Her Majesty's Customs and Excise at the port of Harwich on 18 March of this year hidden in the back of a motor lorry which had just arrived from the Hook of Holland. He was refused leave to enter and he then claimed political asylum. That matter was considered by the Immigration and Nationality Department of the Home Office. On 20 March of 1994 his application was refused in these terms:

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

However, Bangladesh is not the only country to which you can be removed. You arrived in the United Kingdom from the Netherlands where you admitted you had spent one week. You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to the Netherlands 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 the Netherlands and on previous experience in returning passengers to the Netherlands 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 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 obligations under the Convention, is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention."

As he was entitled to do, the applicant then appealed to a special adjudicator. The appeal first came before Professor Counter sitting as a special adjudicator on 28 April of this year. He made an order that the Secretary of State should file, within seven days, written evidence showing the basis upon which he had concluded that Holland was safe insofar as this appellant was concerned.

The order also provided that there should be exhibited to the written evidence copies of the documents relied upon, including correspondence between the Home Office and the Foreign and Commonwealth Office, both abroad and in the United Kingdom on the one hand, and the relevant Dutch authorities on the other and correspondence between the Home Office and the United Nations High Commissioner for Refugees, the evidence to be filed with the appellate authorities and the Refugee Legal Centre.

In compliance with that order, the Secretary of State filed material and gave reasons in a document which is to be found at pages 35 and 36 of the bundle of documents before the court. Paragraph 1 began:

"The Secretary of State regards the Netherlands as a safe third country in respect of the appellant for the following reasons . . ."

I need not cite all those reasons in this judgment because they are set out quite clearly on page 35, but it is relevant to note that the first reasons given were as follows:

"(a) The Netherlands is a signatory to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees; and to ICAO standards (the Chicago Agreement);

(b) The Netherlands is a fellow member of the European Union and as such takes part in international fora concerned with immigration issues, including asylum, relating to the Union; eg the Dublin Convention; [and]

The final reason of the six reasons given in that letter was:

"(f) The Netherlands has been considered 'safe' in many previous cases before the special adjudicators."

The matter then came for determination before a special adjudicator, Mrs Symons, on 13 May of this year. She gave her determination and reasons in writing on 23 May of this year. Her determination and reasons are to be found at page 125 and the succeeding pages of the bundle of documents before the court.

She set out the factual basis of the application. She recorded the arguments which were addressed to her in the course of the hearing of the appeal. Finally she said at page 132 of the determination and reasons:

"I find that the Secretary of State has satisfied me that Holland is a safe country, within the meaning of the Convention, to which the appellant can be returned under the provisions of paragraph 180K of the Immigration Rules HC 725, and that he is not debarred from any of the other provisions of that rule from returning the appellant there. I find myself in agreement with the certificate of the Secretary of State and I dismiss this appeal."

In reviewing the application before this court, Mr Nicholas Blake QC submits that the judge below failed to give effect to what he submits was an error on the part of the adjudicator and that this court, in considering the matter afresh, should have regard to that factor. The argument centred firstly on a provision in an Aliens Act or legislation relating to aliens, termed, as I understand it, the "Dutch Aliens Act" and in particular to article 15(b) and (f). That Act may or may not actually be in force in Holland at the present time, but in any event it is shortly to be brought into force.

The submission made by Mr Blake, and which had been made to Latham J, was that the terms of that article left open the question as to whether, if the refugee had been previously in Holland but unnoticed by the authorities, he would be returned to a safe third country, for example, returned to this country, or whether the refugee might be allowed to present substantive arguments as to the risks of being returned to the country of origin and thereby establishing a claim to asylum in the Netherlands. There was argument as to the precise meaning of that provision.

The special adjudicator did in fact note the arguments which were put forward, but she concluded her decision by stating that she found that the Secretary of State had satisfied her that Holland was a safe country within the meaning of the Convention and had no reason to believe that Holland would not in fact honour her obligation under the Convention, and indeed the Dublin Convention.

She said in the course of her decision at page 131:

"It appears to be a serious allegation to make that a country such as Holland, a signatory to the Convention, would pass new legislation which would contravene her obligations under the Convention."

She finally said in terms:

"I can see no reason to believe that Holland would fail to observe her obligations under the Convention by sending the Appellant back to Bangladesh contrary to the provisions of the Convention."

Mr Nicholas Blake has urged that this court should take serious note of the possibility -- he would say probability -- that Holland, in the light of the most recent domestic legislation from that country, could not safely be regarded as being unlikely to send back the applicant to either Bangladesh or to refuse to deal with him in a way which would ensure his safety.

In presenting an application for leave to move for judicial review, it must be shown that there is a serious argument which can be addressed to the court to show that, in this case, the decision of the special adjudicator was unreasonable in the Wednesbury sense. It is not suggested that it was perverse, but in this case the Wednesbury reasonableness test is cited.

In my judgment nothing that Mr Blake has urged upon us suggests that Holland is likely to be an unsafe country. Mr Blake has raised the possibility that, since it appears that the applicant's route from Bangaledsh was via Singapore as well as via Holland, that he might be sent on by Holland to Singapore, and Mr

Blake suggests that Singapore, not being a signatory to the United Nations Convention, should not be considered a safe country. However, that is entirely hypothetical. It was an argument which was not raised before the special adjudicator or apparently before Latham J.

In this case a decision of Sedley J, which was before Latham J, is in point. It is the case R v Secretary of State for the Home Department ex parte Muthaiyan Amalanathan, and we have a transcript of the judgment which was given on 13 May of this year. In that case, which was remarkably similar on its facts to the instant case, the learned judge considered that, even if there were to be what he terms an "ambiguity" in the provisions of the Dutch Aliens Act, firstly that would not be a judicable issue in the United Kingdom courts but, in any event, even considering the wording of that particular article upon a basis which was most favourable to the applicant, it would appear that the Netherlands' authorities would construe the position as entitling them to return the applicant to this country from which he would then be considered to have entered Holland. The learned judge decided in that case the fear which had been raised would not have been made out.

In my judgment there is no room for regarding the decision of the special adjudicator as being flawed in respect of her finding that the Secretary of State had satisfied her that Holland was a safe country. I would refuse this application.

Judgment Two:

ROSE LJ: I agree.

Judgment Three:

MILLETT LJ: I also agree.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor