Dega Maow Khaire, Kaariye Maow Khayre v. Secretary of State for the Home Department and Immigration Officer - Gatwick Airport, and United Nations High Commissioner for Refugees ad Litem

Dega Maow KHAIRE
Kaariye Maow KHAYRE
Appellants
and
Secretary of State for the Home Department
First Respondent
and
Immigration Officer - Gatwick Airport.
Second Respondent
and
United Nations High Commissioner for Refugees
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Heard:14/12/93

Determined:14/12/93

Written Determination

Prepared:16/12/93

Promulgated:

Before:
Mr M.W. Rapinet
Special Adjudicator
at HATTON CROSS

DETERMINATION AND REASONS

The appellant's in this case are brother and sister and both arrived in this country on 6 September 1993 and on 10 September 1993 they were both refused leave to enter under paragraph 180K of HC 725. They both appeal under Section 8 (1) of the Asylum and Immigration Appeals Act 1993. The two appeals were listed separately under appeal number HX/70283/93 in the case of Dega Khaire and under case HX/70284/93 in the case of her brother, Kaariye Khayre. It had been agreed between the representatives for the appellant and the respondent that not withstanding the fact that both appeals had been listed separately both cases would be heard as one and that a single determination would be delivered to cover both appellants and both appeals.

The appellants were represented by Mr Nicholson and the respondent by Mrs Stone. Both appellants are citizens of Somalia. Dega Khaire is 24 years of age and her brother Kaariye Khayre is 22 years of age. In respect of both appeals a certificate has been issued by the Secretary of State under paragraph 5 (3) of the Second Schedule to the 1993 Asylum and Immigration Appeals Act. In respect of both appellants the United Nations High Commissioner for Refugees has indicated that he wishes to be treated as a party to the appeal but has also indicated that he will not be present at the hearing. By letter dated 20 September 1993 he made submissions to which I shall refer later in this determination.

The background of the two appellants is slightly different. They both fled from Somalia, Dega Khaire in 1991 and her brother Kaariye in 1992. They both fled initially to Ethiopia. Dega Khaire then travelled from Ethiopia to Italy with a travelling companion who appeared to provide all necessary documents as she had no passport. She lived in Italy for one year and four months and during much of this time she was ill. She then returned to Ethiopia. In Italy she lived with friends as she did in Ethiopia. She did not see her brother on her return to Ethiopia although she contacted him by telephone. He was apparently living in Ethiopia. She then maintains that she flew direct from Addis Ababa to London although she could not remember whether the plane stopped anywhere maintaining that she was ill. It was put to her that she in fact disembarked from a plane that had flown from Amsterdam and she denied any knowledge of this. She now lives with her brother, the second appellant, and another brother, Hussein, who has lived in this country for some time.

When questioned she stated that she flew from Ethiopia to London without a passport in the company of somebody. This same person got her onto the plane and through the appropriate immigration controls. She does not know who this person is nor does she know what airline she travelled by. She apparently embarked from Addis Ababa but did not know what her destination was to be, these details being left to those responsible for getting her to her brother, Hussein, although she admitted that she was aware that her brother lived in London. She finally admitted that she did think that she was on a flight to London. She could not remember whether the flight touched down anywhere between Addis Ababa and London. She was referred to the grounds of appeal in which she states that she flew to London via the Netherlands and that she and her brother met in Ethiopia and flew together to Amsterdam and from there to London. She informed me that her brother prepared the grounds of appeal. She admitted that earlier in evidence she told me that she had no contact with her brother in Ethiopia other than by telephone and then stated that she did not in fact meet up with him in Ethiopia but had met him on the aeroplane. She stated she could not remember whether she was ever in Amsterdam as she was sick. She told me that her brother had completed the grounds of appeal on the basis of instructions from her and that she had told him the truth and then informed that she was not sure whether or not she had told her brother, Hussein, when he was completing the grounds of appeal that she had been to Amsterdam. On arrival in this country she went to the Immigration officer and claimed asylum. She could not remember what she was asked on interview and she was referred to the interview notes where she had stated that she had been in Amsterdam for a week. She then told me that she was shocked and could not remember what she had said. She was asked whether she had been in Amsterdam for a week and she told me that she did not know.

The position of the second appellant, Kaariye, is slightly different in that he also left Somalia in 1991 and went to Kenya where he remained until November 1992. From Kenya he travelled to Germany with a passport procured through agents. He lived in Germany for three months and claimed asylum there and was interviewed but left before the German authorities took any decision. He decided to leave because his visit visa was due to expire and he had heard of the activities of neo-Nazis in Germany who were hostile to refugees. He then returned to Kenya where he stayed for two months before moving to Ethiopia and from there to the United Kingdom. He flew direct from Addis Ababa to London although he believes there was a stopover but he could not remember where. It was pointed out to him that on interview he had stated that he had been in Amsterdam for three days. He denied that he had stated this contending that he may have said three hours. He then denied that he went to Holland. He had heard that his sister was in Ethiopia and was ill although, apparently, he did not contact her but having heard that she intended to go to the United Kingdom he then told me that he planned to go with her. He told me that he saw her when they met on the plane and he could not remember which plane. The journey had been planned by others and he initially indicated that he did not know where the plane was due to fly to, although he had planned to come to London. He informed me that the plane did touch down somewhere en route but did not know where. He and his sister and a female courier travelled together. He had no passport or other documents, all these details being entrusted to the woman courier.

On arrival in this country he claimed asylum and on interview (A3) stated that he had been in Amsterdam for three days. He then informed me that he did not in fact state this on interview, merely stating that he had been in Amsterdam for three hours. He was pressed with regard to this and was somewhat evasive. It was pointed out to him also that on interview he had stated that he had been told that his sister was in Holland and that he was going to join her there and he informed me that the courier had informed him that his sister was in Holland and he was going to meet her there. He could not remember whether he had stated on interview that he was to meet her in Holland. He confirmed that his brother, Hussein, had completed the grounds of appeal and he was referred to these grounds of appeal in which he stated that he had been in Amsterdam and that had he been offered sanctuary in the Netherlands, he would not have travelled to the United Kingdom. He then told me that he did not know that he was in Amsterdam but was merely told this.

I then questioned him about where he did meet his sister. I asked him whether when he left Addis Ababa she was not on the plane and he confirmed that she was not. He confirmed that he stopped off in Holland for three hours and was not sure whether he had changed aeroplanes. I then asked him if he had met his sister at the Airport or on the aeroplane in view of the fact that his sister had stated that she had not been to Holland and he then informed me that he did not know whether it was in Holland or on the aeroplane that he had met his sister. I then asked him again whether he had met her in Ethiopia before departure or at departure and he told me that he was not sure.

Hussein Khaire gave evidence and he confirmed that he was now resident in the United Kingdom having arrived in this country in 1985 and claimed refugee status and had been given indefinite leave to remain. He informed me that he did not meet his brother or sister at the airport on their arrival as he did not know they were coming. He was contacted when they arrived. He was asked where they had come from and he told me that he thought it was Dublin but was subsequently told that it was Holland.

The Secretary of State refused both applications on the basis that both appellants had spent time in Holland and had opportunities to claim asylum there and that Holland was a signatory to the Convention and a third safe country within the meaning of 180K. In respect of Dega he pointed out that she had spent over a year in Italy and one week in Holland before arriving in this country and in respect of Kaariye that he had spent three months in Germany and three days in the Netherlands before arriving in this country.

Mrs Stone in her submission stated that the evidence is quite clear that the two appellants had disembarked at Gatwick from an aircraft that originated in Amsterdam and that amongst the papers before me was a Manifest indicating quite clearly that they had come from that city. There was some dispute as to how long the appellants had been in Holland. One had stated a week on interview and the other three days and both of them in their evidence before me had stated that they were merely in transit although initially neither was prepared to admit that they had been to Holland at all. The brother has spent some considerable time in Germany and the sister an even longer period of time in Italy. On the basis of the evidence before me it was perfectly clear that both had come from Amsterdam and that both had had ample opportunity to seek asylum in that country and therefore the provisions of paragraph 180K applied.

Mr Nicholson in his submission stated that within the context of paragraph 180K he wished to make no submissions as to whether or not Holland was a third safe country and that any application by them for asylum in that country would be considered. The evidence would indicate that both appellants had been in Amsterdam and for some period of time. Whether or not they had the opportunity to seek asylum was a different matter. He referred me to the very extensive medical reports in relation to Dega and if I were to accept those medical reports it was perfectly clear that she was in no mental condition to make any claim for asylum. So far as Kaariye is concerned, he maintained that he was only in transit and it has not been established whether or not he had been in Amsterdam for any period of time or in transit. The Manifest which had been produced was in different names.

He asked that if I were minded to determine that the certificate of the Secretary of State was properly issued I should make a recommendation in the case of Dega because of the medical evidence which he urged me to study because of what she would suffer as a result of being uprooted and returned to Holland. He referred me to a letter of 9 November 1993.

At the conclusion of the submissions I delivered my determination and indicated that so far as the question of making a recommendation is concerned I would consider whether or not I had jurisdiction in cases that come under paragraph 180K to make such a recommendation and that once I considered this aspect I would deliver a supplementary determination at a later date.

I delivered my determination in the following terms.

Both appellants being Somalians and being brother and sister have claimed asylum on arrival in this country on 6 September 1993. The Secretary of State has not considered their substantive claims for asylum as he is not bound to do having refused the appellants leave to enter under paragraph 180K of HC 725 and having issued a certificate under paragraph 5(3) of the Second Schedule to the 1993 Act. The Secretary of State maintains that the appellants arrived from Amsterdam where Dega Khaire had stated that she spent one week and her brother Kaariye had stated that he spent three days and therefore he considered that they had had ample opportunity for seeking asylum in that country and that, the Netherlands being a signatory to the Convention, it was a safe third country within the meaning of paragraph 180K to which the appellants could be returned. In any event both appellants had spent not inconsiderable times in Italy and Germany respectively and Kaariye had made an application for asylum in Germany.

The appellants sought to convince me initially that they had not come from Holland at all but flown direct from Addis Ababa and then conceded that they had come through Holland but were only in transit and had not spent the periods there which on interview they had claimed to have spent and to which they had made reference in their respective grounds of appeal. I failed to find either of the appellants to be credible. Although they both arrived in this country on the same flight their versions of events as to when they met, where they joined that flight, whether one was in Ethiopia and one in Holland were at such variance that it is quite impossible to place any confidence in their veracity. The respondent has produced a Manifest which indicates clearly that they had arrived from Amsterdam and the evidence of the Immigration Officer is that they came off an Amsterdam flight. I accept therefore that they came to this country from Amsterdam. Dega maintained originally that she was in Amsterdam for a week and Kaariye that he was in Amsterdam for three days and they both sought to retract those statements in evidence before me and, in view of my finding as to their credibility, I do not accept that they were merely passengers in transit with no opportunity to claim asylum. I questioned Kaariye in particular with regard to this. On the basis of my questioning I am satisfied that both he and his sister were in Holland for a sufficient period of time to give them opportunity to claim asylum in that country.

I am satisfied that the Netherlands is a signatory to the Convention and there is no evidence before me that the Netherlands would not observe its obligations under that Convention with regard to asylum seekers and indeed that point has been conceded by Mr Nicholson. My own experience of dealing with cases from the Netherlands is that that country is one which scrupulously observes its obligations with regard to asylum seekers.

The United Nations High Commissioner for Refugees has submitted what I call "standard grounds" for maintaining that the evidence should be put before me specific to the appellants and the fact that a so called third country would consider specific appellants' applications for asylum. These standard submissions by the United Nations High Commissioner for Refugees were reviewed extensively by Mr Justice Laws in the Mehari case and rejected. I similarly reject it.

For these reasons therefore I consider that the certificate issued by the Secretary of State under the provisions of paragraph 5 (3) of the Second Schedule to the 1993 Act has been properly issued in respect of both appellants and their appeals are accordingly dismissed.

Supplementary Determination

As indicated at the conclusion of the hearing and the delivery of my determination I stated I would give consideration to the submission by Mr Nicholson that I should make a recommendation but I had reservations as to whether or not I had jurisdiction to make such a recommendation. My concern was that in a case where the Secretary of State has not given substantive consideration to the merits of the application, namely a case under paragraph 180K, an Adjudicator would have jurisdiction to make a recommendation. I have given the matter some thought. The issue of a certificate by the Secretary of State that the appellant's appeal against the refusal is without foundation is an act performed by the Secretary of State pursuant to a specific power given under paragraph 5 of the Second Schedule to the 1993 Asylum and Immigration Appeals Act. The Adjudicator's function is to examine the basis upon which that certificate has been issued and then take the action set out in sub-paragraph 6 of paragraph 5. 1 therefore consider that the Secretary of State does not have residual powers which override action which he has taken pursuant to the provisions of a particular statute. It is not in dispute that the Secretary of State has a discretion to take action outside the rules, in this case HC 725, but a certificate that an appeal is without foundation is not a certificate issued under a rule but a certificate issued under a statute and in my view therefore, having issued that certificate, the Secretary of State does not have a discretion to take action which is contrary to that certificate and having certified that an appeal is without foundation and that certificate having been upheld by an Adjudicator, the Secretary of State has no further power to act in relation to that appeal. The appellants' representatives made representations to the Secretary of State after the certificate had been issued but before the appeal had been heard. These were by letter dated 5 November. The Secretary of State dealt with these extensively in his letter of 9 November. My view is that as at that time, and at any time before the appeal is due to be heard, the Secretary of State could withdraw a certificate issued under paragraph 5(3). He has clearly, in his letter of 9 November 1993, chosen not to do so. I therefore conclude that I must reject that submission by Mr Nicholson that I should make a recommendation to the Secretary of State for the reasons that I have indicated.