R v. Secretary of State for the Home Department, Ex parte Rubanraj

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	11 March 1993
Citation / Document Symbol	[1993] Imm AR 447
Cite as	R v. Secretary of State for the Home Department, Ex parte Rubanraj, [1993] Imm AR 447, United Kingdom: High Court (England and Wales), 11 March 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b66318.html [accessed 3 June 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte RUBANRAJ

Queen's Bench Division

[1993] Imm AR 447

Hearing Date: 11 March 1993

11 March 1993

Index Terms:

Political asylum -- citizen of Sri Lanka -- arrived in United Kingdom via Czechoslovakia and France -- Secretary of State declined to consider application on the merits -- decided to return applicant to France -- whether Secretary of State's approach reasonable -- whether it was likely that France would remove the applicant to Czechoslovakia -- whether France would refuse to consider the application because the applicant would have spent longer in the United Kingdom than in France. HC 388 para 75.

Held:

The applicant seeking leave to move for judicial review was a citizen of Sri Lanka. He had arrived in the United Kingdom via Bangkok, Czechoslovakia and France. On arrival in the United Kingdom he claimed asylum. In accordance with his publicly stated policy, the Secretary of State declined to consider the application on the merits: he decided to return the applicant to France.

Counsel for the applicant accepted the general applicability of the publicly announced ministerial policy of returning applicants to the first safe country they had reached. He argued however that in this instant case to follow that policy was unreasonable. There was a danger that France would remove the applicant to Czechoslovakia, a country not a party to the Dublin convention. The applicant had also spent longer in the United Kingdom than in France, and there was a likelihood that he would be sent back to the United Kingdom.

Counsel for the Secretary of State assured the court that it was not the practice for a "first safe country" to send an applicant back to yet another country through which he had passed during his journey.

Held

1. On the facts as they were, the Secretary of State's decision was not Wednesbury unreasonable.

2. If the applicant were returned by France to the United Kingdom, then following Bouzeid the court could consider those changed circumstances: there was no evidence however that it was a rule of law or practice for one country to send back an applicant to another country because he had spent more time in that latter country.

3. The court found no acceptable evidence that France would send the applicant back to Czechoslovakia.

Cases referred to in the Judgment:

Charles Bouzeid and ors v Secretary of State for the Home Department [1991] Imm AR 204.

Counsel:

T Cooray for the applicant; Miss A Foster for the respondent

PANEL: Pill J

Judgment One:

PILL J: This is an application for leave to seek judicial review to quash a decision of the Secretary of State for the Home Department to refuse admission into the United Kingdom of Mr Rubanraj. He has been in this country now since 16 February 1993. He claims political asylum. He has come from Sri Lanka by way of Bangkok, Czechoslovakia and France to the United Kingdom.

Mr Cooray, who appears on his behalf, accepts the principle, as set out in a policy statement given by the then Minister of the Home Office, that an application for asylum from a passenger who has arrived in the United Kingdom from a country other than the country in which he fears persecution will not normally be considered substantively. The passenger will be returned to the country from which he embarked or to another country in which he has been since he left the country of feared persecution or, if appropriate, to his country of nationality, unless the Minister is satisfied that the country is one in which his life or freedom would be threatened or that it would return him to such a country.

Mr Cooray's two points are: first, that the applicant might be moved on from France to Czechoslovakia, where the protection of the Dublin Convention would not apply; and second (upon the evidence which is submitted from a French consulate general in London), that an application for asylum in France is not likely to be received because the applicant spent more time in Britain than in France. For present purposes it is accepted that he spent only a short time in France, but equally it is accepted that he could have remained in France had he chosen to do so.

I have been referred to the case of Bouzeid [1991] Imm AR 204, a decision of the Court of Appeal, which establishes the following principles: first, that there is nothing unreasonable in law in adopting the policy that it was the first safe country which an applicant reached which should consider an application for asylum; second, that it would be different if, as asserted, Austria (which was the other country in that case) refused to admit the applicants, who then were shuttled between the United Kingdom and Austria; and third, that, as matters then stood in that case, the application was dismissed.

Miss Foster, who has appeared for the proposed respondent, without objection on behalf of the applicant, submits that the principle in Bouzeid applies and that, following the practice as stated by the Minister in his statement of policy, which is a lawful policy, the applicant should be returned to France.

I deal with Mr Cooray's second point first. I cannot attach weight in this context to the statement of the consulate general. To what extent that officer is familiar with asylum procedures I do not know, but there is no evidence to suggest that the French authorities would do other than honour their obligations under the Dublin Convention. I have been referred to no rule of law or practice which means that, if a person spends more time in the second state of entry than he did in the first, then that is a good reason for the first to return him to the second. (But see approach adopted in R v Secretary of State for the Home Department ex parte Thaibu Hilaluden [1993] Imm AR 250).

Mr Cooray's first point, however, is that there is a risk that the French authorities, applying the same principle as I am invited by the respondent to apply, would pass the applicant on to Czechoslovakia. They may make an assessment that Czechoslovakia is a safe country for present purposes. However, if that does happen, the applicant would then lose the safeguards which those within the Convention countries have and would be at risk of being sent back to Sri Lanka.

Mr Cooray has referred to the lack of time with which to prepare his application. He has not been able to refer me to any authority under which the fourth country point, as he has called it, has arisen. I have to consider whether it is arguable that, on the law as it stands, the principle in the case to which I have referred should not apply on the ground that the French authorities may pass the applicant back to another country.

Miss Foster has told me that the practice would not be for that to happen. In a case where an applicant has come through a number of countries, whether or not they are parties to the Convention, the practice is not to shuffle the person backwards in the reverse order and a Convention country would certainly not adopt that course. There is no reason to suggest, she says, that the applicant, having been sent to France, is likely to be passed on.

I have no reason to doubt that the French authorities will carry out their obligations under the Convention. If there are differences between countries arising out of this, it will not involve sending on the applicant to Czechoslovakia, but will involve a consideration by the French authorities of returning him to this country which, as far as the French authorities are concerned, would be the previous country in which he had been present.

On the material before me, I do not consider it arguable that at this stage the principle in Bouzeid should not be applied.

As is contemplated in Bouzeid, a situation might arise in which the courts in this country had to reconsider the position. But on the material before me -- and not doubting that the French authorities will comply with their obligations -- I cannot hold that it is arguable that the principle in that case should not apply. However, the court in Bouzeid kept open the possibility of reconsideration, and I refer to the appropriate sentences in the judgment of Dillon LJ:

"Nor can I say that there was any unreasonableness in the Secretary of State's decision, given the established 'first safe country' policy which the Home Secretary operates. It will be different, as I said yesterday in Karali's case, if the applicants are returned to this country and it then appears that there is a possibility of the Secretary of State neither considering the applicant's claim for asylum himself, nor considering whether there is any other country which could properly be asked to consider it, but simply seeking to return them yet again to Austria to shift the burden back to Austria, which ex hypothesi would have refused to accept it. But as matters stand at the moment

I would refuse this application."

On the material before me, I refuse the present application.

DISPOSITION:

Application refused

SOLICITORS:

Ratna & Co, London E6; Treasury Solicitor