Colak 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	28 June 1993
Citation / Document Symbol	[1993] Imm AR 581
Cite as	Colak v. Secretary of State for the Home Department, [1993] Imm AR 581, United Kingdom: Court of Appeal (England and Wales), 28 June 1993, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b62d10.html [accessed 3 June 2023]
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.

COLAK v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1993] Imm AR 581

Hearing Date: 28 June 1993

28 June 1993

Index Terms:

Political asylum -- Turkish Kurd -- arrived in United Kingdom via Paris -- only transit passenger in France -- whether Secretary of State had the power to return applicant to France for consideration there of his claim on the merits -- the relevance of article 8A of the EC Treaty. European Economic Community Treaty 1957 (as amended) art 8A; Single European Act 1986 arts 13-19, Appendix.

Held:

Renewed application for leave to move for judicial review, following refusal by Macpherson J. The applicant was a Turkish Kurd who had arrived in the United Kingdom from France and claimed political asylum. He had only been a transit passenger in France: the Secretary of State however concluded that he had had an opportunity to claim asylum there: in accordance with his stated policy he decided to return the applicant to France for his claim to be considered there on the merits.

Counsel argued that the effect of the article 8A of the EC Treaty (incorporated into that Treaty by the Single European Act) was to remove power from the Secretary of State to return the applicant to France. The article gave freedom of movement within the Community and had direct applicability.

Held

1. It was common ground that article 8A did not give any right to a national of a non-Member State to enter any Community state and move around the Community at his will. The applicant was never admitted to France, and could not claim the article was directly applicable to him.

2. The appendix to the Single European Act specifically reserved to individual Member States the right to take such measures as they considered necessary for the purpose of controlling immigration from third countries. The Act did not prevent Member States from continuing their existing policies in that regard.

3. It followed that the Secretary of State had the power to return the applicant to France.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Mehmet Colak (unreported, QBD, 25 June 1993).

Counsel:

M Supperstone QC and D O'Dempsey for the applicant; D Pannick QC and M Shaw for the respondent

PANEL: Dillon, Stuart-Smith, Evans LJJ

Judgment One:

DILLON LJ: This is a renewed application for leave to apply for judicial review presented on behalf of Mehmet Colak. Mr Colak is a Turkish Kurd, and he was born in October 1967. He seeks political asylum in view of the treatment of Turkish Kurds in Turkey. On 18 June 1993, with the assistance of an organisation in Turkey, he left Turkey on a flight which took him to Paris. He wanted to come on to this country to claim political asylum here because he has two sisters here. He did not disembark in Paris, or claim political asylum there. He remained air side, as it is called, rather than ground side, and spent some four hours, as I understand it, in a transit lounge before he was taken on by another plane to Heathrow. On his landing he claimed political asylum.

His claim has not been considered in this, or any, country because it is the view of the immigration authorities here that under the unratified Dublin Convention, and the policy which has been followed since then, the claim should be considered in France as the first country after leaving Turkey where he could have made the claim. It is the view of the Home Office that if he is returned speedily to France the French authorities will be prepared to consider his claim for asylum. It is not in doubt that if the claim is considered in France it will be considered fairly there. If, however, the French are not prepared to undertake the consideration of his claim themselves, then it is clear that the French will not return him to Turkey before his claim to seek asylum has been considered in some safe country. That would be likely to mean the French would return him here, and if they do then the Secretary of State will consider his claim here. There is no question of his being left on shuttle between London and Paris for an indefinite number of times.

He arrived on 18 June, and it appears that his legal advisers were not instructed until 23 June. They applied at once to Macpherson J for judicial review to quash the decision of the Secretary of State to return him to France and not to consider his claim for asylum here. That application was heard by Macpherson J on Friday 25 June, and he refused it. We have a note of his reasons. The claim is therefore renewed as a matter of urgency in this court this morning, and we have had the benefit of leading counsel appearing on each side, Mr Supperstone for the applicant, and Mr Pannick for the Secretary of State.

Mr Supperstone abandons in this court the majority of the points which were argued before Macpherson J, and concentrates on one point only, a point of European Community law. This is that as a result of the Single European Act, and article 8A of the Treaty, which was introduced to supplement the provisions of the Treaty, there is no power to return the applicant from this Member State to France, and it would be a breach of the directly applicable provisions of the Treaty.

Plainly there are floating around in the background to this case a number of important issues of European law, not least that it appears that there is a difference between the views of the European Commission and the views of HM Government in the way of direct application of provisions of the Treaty relating to the free movement of people and goods.

To my mind there are certain fairly short points in this case, which it is sufficient to mention. It may be true that there is a difference of opinion between HM Government and the Commission on whether the Single European Act, article 8A, can be directly invoked by persons who are subjects of third countries, and not of Member States of the Community. But in the present case this applicant was never admitted to France, so as to be lawfully within France. He was merely in transit. Therefore there does not appear to be any basis for saying that he has achieved a position in which he can claim direct application of article 8A to himself. It appears to be common ground that article 8A does not give any right to a national of a non-Member State to enter any Community state and move around the Community at his will.

In the second place, there is a general declaration on articles 13 to 19 of the Single European Act, which is appended to the Act, which says:

"Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries,"

and there is also a reference to terrorism, crime and trafficking of drugs, and illicit trading in works of art and antiques, none of which is relevant. That, as I read it, means that the Single European Act provisions do not prevent Member States continuing their existing policy for the purpose of controlling immigration from third countries.

If that is so, the Secretary of State remains entitled to apply the policy which was applied following the Dublin Convention, and Mr Waddington's declaration, of referring cases back to be considered by the state where asylum could first have been claimed provided that, as is offered in the present case if the state to which the applicant is sent refuses to consider his claim to asylum and sends the applicant back to this country, the Secretary of State will consider his claim.

I therefore take the view that article 8A does not give this applicant an answer to the Secretary of State's claim, and I would refuse this application.

Judgment Two:

STUART-SMITH LJ: I agree. In my judgment the short answer to this application is that provided by Mr Pannick, and that is this, that whether or not article 8A applies to nationals of non-Member States, it is plain that it can only apply to somebody who has entered the internal market, and it seems to me on the applicant's own case he never, in fact, did this. He remained in transit, and he never entered France.

The Secretary of State has said that he is satisfied that the application for asylum will be entertained by the French authorities. That is sufficient for the purposes of this court. He has also said that if, in fact, that expectation turns out to be wrong, and the French authorities do not entertain such an application, and he is sent back to this country, then the substantive application will be entertained by him. I also, therefore, would dismiss this application.

Judgment Three:

EVANS LJ: I also agree. I should like to emphasise the importance, for me at least, as my lords have indicated with respect to themselves, of one thing which we were told by Mr Pannick, appearing for the Secretary of State. He said that if Mr Colak's asylum application is not considered by the French authorities, then the Home Secretary will be prepared to consider it here.

Precisely what the mechanics will be to ensure that the applicant is not returned to Turkey in that event without a chance to renew his application here, I am not sure, but I should like to make it clear that I, for my part, accede to the Secretary of State's submission that we should refuse this application only on the basis that that safeguard will, in fact, be provided for Mr Colak.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor