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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	2 December 1993
Citation / Document Symbol	[1994] Imm AR 224
Cite as	R v. Secretary of State for the Home Department, Ex parte Cokezici, [1994] Imm AR 224, United Kingdom: High Court (England and Wales), 2 December 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b666c.html [accessed 30 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte COKEZICI

Queen's Bench Division

[1994] Imm AR 224

Hearing Date: 2 December 1993

2 December 1993

Index Terms:

Political asylum -- Turkish Kurd -- arrived in United Kingdom from Sweden -- application for asylum refused -- Secretary of State proposed to return applicant to Sweden -- "without foundation" appeal dismissed -- whether third safe country policy unlawful -- whether the relevant immigration rules were ultra vires -- whether the Secretary of State was obliged to provide a certificate separate from his letter in respect of "without foundation" appeals. Asylum and Immigration Appeals Act 1993 s 2, sch 2 para 5: HC 251 para 180K. United Nations Convention relating to the status of refugees (1951) (Protocol 1967) art 32.

Held:

The applicant for leave to move for judicial review was a Turkish Kurd who had arrived in the United Kingdom via Sweden and on arrival had claimed political asylum. The Secretary of State had declined to consider the application on the merits and proposed to return the applicant to Sweden. A "without foundation" appeal had been dismissed by a special adjudicator.

Various challenges were raised by counsel, which had already been reviewed by the court in Mehari: the lawfulness of the Secretary of State's third safe country policy was put in issue, and the vires of paragraph 180K of HC 251.

When the appeal went before the special adjudicator it was recorded in a letter that the Secretary of State had certified that the claim was without foundation, but no separate certificate to that effect was produced: counsel argued that without such a certificate, the appeal could not proceed under the fast track provisions.

Held

1. Following Mehari and the settled cases in the Court of Appeal which were not undermined by the provisions of the 1993 Act, the third safe country policy was not unlawful.

2. Following Mehari paragraph 180K of HC 251 was not ultra vires.

3. It was difficult to fault in law the conclusions of the Tribunal in Mustafaraj and no separate certificate was required by law, albeit the learned judge expressed the view that for his part he would "have thought it desirable that the Secretary of State if he is going to narrate in a letter he has certified, should produce a certificate as such".

Cases referred to in the Judgment:

Gogo Mustafaraj v Secretary of State for the Home Department [1994] Imm AR 78. R v Secretary of State for the Home Department ex parte Senay Mehari and ors [1994] Imm AR 151.

Counsel:

D O'Dempsey for the applicant; R Tam for the respondent

PANEL: Laws J

Judgment One:

LAWS J: This is an application for leave to move for judicial review. The applicant is a Turkish national of Kurdish origin. He says that he is a refugee because he fears persecution in Turkey. He went to Sweden, stayed there for about eleven hours and then he came to this country. As it happened he had a false Greek passport, but that is in no way to be presumed against him, because he claimed asylum. The Secretary of State refused his claim.

He took advantage of his appeal rights in the Asylum and Immigration Appeals Act 1993. The case was one in which the Secretary of State had, at any rate, said that he had certified under paragraph 5 of schedule 2 of that statute that the claim was without foundation. The adjudicator dismissed the appeal, agreeing that the claim was without foundation. It is to be noted that whereas the Secretary of State had in his decision letter indicated that, on his understanding, Sweden (from which the applicant had come) was a country that could be expected to comply with its Convention obligations if the applicant were returned there, nothing whatever was said by way of submission, evidence or otherwise to the adjudicator, nor as I understand it to the Secretary of State, to suggest that this man would be other than entirely safe if he were returned to Sweden.

Notwithstanding those facts, it is submitted to me by his counsel that it is arguable that the adjudicator's decision is unlawful on the footing that on a true construction of the Asylum and Immigration Appeals Act 1993 the United Nations Refugees Convention is wholly transported into English law and that a result of that circumstance is that once a person comes to these shores and asserts facts that would or might show that he is a refugee, then, first, he cannot be expelled from the United Kingdom by virtue of article 32 of the Convention; and, secondly, his is a case which by the assertion of those facts raises an issue for the purposes of schedule 2, paragraph 5(3)(a) of the Act of 1993. I should say that that sub-paragraph is the paragraph which defines a "without foundation" claim, an expression which itself applies to those cases which the Secretary of State is entitled to certify under paragraph 5(1). The definition in 5(3) is:

"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; or

(b) it is otherwise frivolous or vexatious."

Certain other submissions are made to which I will briefly refer. In effect, the result of the primary submission made to me is that what is known as the safe third country policy is necessarily unlawful because the implication of the submission is that, upon a person credibly asserting that he is a refugee in this country, the Secretary of State has no option but to consider his claim substantively. That seems to me a wholly unarguable proposition. It is inconsistent with Court of Appeal authority, at least prior to the enactment or the coming into force of the Act of 1993. Since, in my judgment, it is plainly beyond argument that so far as the United Nations Convention is concerned the effect of section 2 of that Act is no more nor less than that the immigration rules are by statute required to be consistent with the Convention, whereas previously that position arose by legitimate expectation, there is nothing in that provision that would in any sense disapply the learning in the Court of Appeal upholding the third country policy.

It is also submitted that paragraph 180K of the up-to-date immigration rules which reflects and allows the Secretary of State to carry into effect the third country policy is ultra vires the Secretary of State because repugnant to the 1993 Act. In Mehari earlier this year, I held that 180K was intra vires and I see no argument today advanced to me to suggest that it is arguable that in fact it is ultra vires.

Other points taken include the proposition that because the Secretary of State here merely wrote a letter saying he had certified under schedule 2, paragraph 5, and did not create a separate document constituting a certificate as such, the case was not one which could have attracted the fast track procedure for certification cases, there being in law no certificate. The Immigration Appeal Tribunal has held in Mustafaraj that the provision of a letter of the kind in question here was sufficient for the certification procedure. For my part, I would have thought it desirable that the Secretary of State, if he is going to narrate in a letter that he has certified, should produce a certificate as such. But as a matter of law I would hold that it is difficult to dislodge the Mustafaraj reasoning. However, even if this point were arguable, I would certainly not give leave on the basis of its being so since the case is so wholly and completely without merit that any further appeal to the adjudicator, it seems to me, would be bound to fail.

There are some other points narrated in the grounds -- alleged failure to give adequate reasons. There is nothing in that. The adjudicator here gave legally proper reasons for his decision. Nor is there anything in the last ground to the effect that the adjudicator either failed to consider schedule 2, paragraph 5 properly, or in some way fettered his discretion.

This application is entirely without merit and will be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Partners, London, N17; Treasury Solicitor