Charles Maroum Bouzeid, Nehmatallah Halidar Hassan, Abdul Karim Chahine Imad, Hussein Al-Sayed Hayder Akram v. Secretary of State for the Home Department

DILLON LJ: Mr. Riza renews in this court an application for judicial review which was rejected by Kennedy J this morning. In this court, as below, it was made ex parte on notice to the Secretary of State for the Home Department, who has been represented in both courts by counsel. The application seeks to quash the decision of the Secretary of State of 20 November of this year refusing to consider the applicant's applications in this country for asylum and the consequent decision of the Secretary of State to remove the applications - there are several of them - to Austria.

The case bears many resemblances to a case which this court heard yesterday afternoon in a matter of the application of Karali and ors. a renewal of an application which Kennedy J had rejected yesterday morning. In Karali's case the removal was to Amsterdam rather than to Austria. In both cases the applicants were people claiming asylum. In Karali's case they were Turkish citizens of Kurdish extraction, who had come from Turkey to Amsterdam and then on by separate flight two days later to this country where asylum was claimed. In the present case they are Lebanese who have come from Damascus by Air Austria to Vienna, which was the end of the flight of that particular aeroplane, and then, after spending the night overnight in the transit lounge at the airport, they came on a separate flight to Heathrow, arriving early the following morning at Heathrow where they claimed asylum.

The basic practice of the Home Secretary in asylum cases is stated in a parliamentary written answer of July of this year to a question in Parliament, where it was said by the Home Secretary:

"It is an internationally 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."

The Home Secretary agreed entirely with that concept and said:

"The Convention's primary function is to give refugees who cannot turn to their own authorities the protection of the international community. It is not an instrument of last resort - not a licence for refugees to travel the world in search of an ideal place of residence. Where protection issues do not arise an application should therefore be dealt with in accordance with normal immigration criteria.

Accordingly, 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…"^[1]

That is the general principle, subject to any substantial links with the United Kingdom which a particular applicant might have, which, in the Home Secretary's view, would make it reasonable for a claim for asylum exceptionally to be considered here. It is on that basis that the Home Secretary takes the view that the claim for asylum which these applicants made on their arrival in this country should not be considered here but should be considered in Austria because that was the first safe country they reached.

The problem, which seems to arise quite often, since it also arose yesterday in this court, is which country should handle a claim for asylum. In yesterday's case we were concerned to look also at the Dublin Convention, which does not yet have the force of law in any of the signatory countries, since both this country and Holland are signatories of that Convention and neither has yet ratified it or adopted it as part of its law. Austria is not a party to the Dublin Convention. The Dublin Convention envisages that time spent in transit in an airport lounge without need for a transit visa would ordinarily not impose any obligation on the country whose transit lounge it was, to consider a claim for asylum not presented in that country. That does not directly arise in this case. In this case the Home Secretary has decided to send these applicants back to Austria. The evidence of the Home Secretary's views is as follows:

"From dealings with Austria over many years no applicant of which the [Home Secretary] had knowledge has been sent back to the country form which he was claiming asylum by Austria without his case for asylum having been considered. The Home Office is in regular contact with both the Austrian authorities and the [United Nations High Commission on Refugees] including very recent contact and no doubt has been raised that the Austrian Government would comply with its obligations under the 1951 Convention."

The applicants' solicitor telephoned the Austrian Immigration Service at Vienna Airport at about 1.30 pm. this afternoon after the hearing before Kennedy J and, having briefly detailed the situation of the applicants and the time they had passed in transit at Vienna Airport, asked the Austrian authorities whether, if the applicants were sent back to Austria in order to claim asylum in Austria, the Austrian authorities would consider their claim. The reply over the telephone was that, as the applicants would have spent seven days in London while the authorities here considered whether to consider the claim and time was allowed for obtaining legal advice and seeking judicial review, then the Minister of the Interior in Austria would say Britain should deal with this claim and the applicants would be returned to the United Kingdom. Mr Pleming, for the Home Secretary, says that the Home Secretary maintains his view that that is not likely to happen. It is easier to give an answer over the telephone, saying that you will not receive people and will send them back, than it is actually to turn them back when they arrive claiming asylum. Be that as it may, the evidence from the Home Secretary sets out on instructions that it is international practice, which the Home Office follows, to remove third country applicants without first communicating with the country to which they are to be returned for consideration of their cases. Mr Pleming says that if the Austrians did return these applicants to London, then the Home Secretary would either consider the substance of their applications for asylum, or would consider whether they should be passed on to Venezuela, because they arrived with visas for Venezuela and tickets for Venezuela, although intending, when they reached London en route to Venezuela, to claim asylum to stay here. It is apparent that there is no current risk of the applicants being returned to any country where they are in any danger of persecution. They may face some inconvenience until their claim for asylum is properly considered, but I am wholly unable to conclude that there was any error of law in the refusal of Kennedy J to quash the decision of the Secretary of State not himself to consider the applicants' applications for asylum and to direct the removal of the applicants to Austria. 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.

BALCOMBE LJ: I agree.

BINGHAM LJ: I also agree.

Applications dismissed

Solicitors: Jane Coker & Co; Treasury Solicitor

^[1] The full text of the statement will be found as a footnote in [1990] Imm AR 573 and in Hansard, 25 July 1990 col. 262-3