R v. Secretary of State for the Home Department, Ex parte Kitoko-Vatukala

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	29 March 1994
Citation / Document Symbol	[1994] Imm AR 377
Cite as	R v. Secretary of State for the Home Department, Ex parte Kitoko-Vatukala, [1994] Imm AR 377, United Kingdom: High Court (England and Wales), 29 March 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b6ac18.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.

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KITOKO-VETUKALA

Queen's Bench Division

[1994] Imm AR 377

Hearing Date: 29 March 1994

29 March 1994

Index Terms:

Political asylum -- applicant had been refused asylum in France -- applied for asylum on arrival in United Kingdom -- Secretary of State refused to consider application on the merits -- considered the application was without foundation -- applicant to be returned to France -- whether Secretary of State had considered all the relevant rules -- the distinction between paragraphs 180K and 180M of HC 251 -- whether Secretary of State had an obligation to establish that the decision to refuse asylum in France had been correct, HC 251 paras 180K, 180M.

Held:

The applicant for leave to move for judicial review was a citizen of Zaire. He had applied for asylum in France, in which country he had spent some time. His application was refused: he was to be returned to Zaire. He made his way to the United Kingdom and claimed asylum on his arrival. The Secretary of State refused to consider the application on the merits. He proposed to return the applicant to France, and certified he considered the application to be without foundation. An appeal was dismissed by a special adjudicator.

Counsel argued that from the papers, it could not be said that the Secretary of State had properly considered the application, not only in relation to paragraph 180K of HC 251, but also in the light of paragraph 180M: he submitted that whereas under paragraph 180K the return of an applicant to a third safe country was laid down to be the normal course, a wider discretion to consider a claim on the merits was embodied in paragraph 180M. Counsel also argued that before returning an applicant to a third safe country pursuant to paragraph 180M, the Secretary of State had an obligation to determine whether the refusal of asylum by that country was correct and in accordance with the Convention.

For the Secretary of State it was contended that paragraph 180M had been considered and the Secretary of State had no obligation to enquire into the decision made by the third safe country.

Held

1. Albeit there was a discretion in paragraph 180M of HC 251, the Secretary of State was entitled to refuse, in the light of its provisions, to consider the application for asylum on the merits.

2. On the facts, it was to be concluded that he had considered the application in the context of paragraph 180M of HC 251 as well as in the context of paragraph 180K.

3. The court appeared to endorse the view that unless the Secretary of State had suspicions that the third safe country had not properly considered an application there made for asylum, he was entitled to rely on the assumption that that country had properly carried out its treaty obligations.

Counsel:

J Gillespie for the applicant; R Tam for the respondent

PANEL: Owen J

Judgment One:

OWEN J: This is an application for leave to apply for judicial review in respect of the refusal of entry to this country to the applicant dated 16 February of this year. It is explained in a letter which is dated 14 February. The application also refers to the dismissal of an appeal by a special adjudicator on 8 March.

The factual background is relevant. It is clearly set out in the grounds upon which relief is sought. The applicant is a citizen of Zaire. He left Zaire at the beginning of September 1991. He went to Belgium but did not remain there very long. He then went to France. Eventually he made an application for asylum. It is not clear how long afterwards that was. That application was rejected on 2 July of last year and an order for his removal to Zaire was made on 1 December of last year.

What happened then was that the applicant obtained a French identity document and travelled to the United Kingdom, arriving at Dover. When he arrived at Dover he made an application for asylum. That was refused. As has been said, it is in part against that refusal that he now applies.

The refusal was without any consideration of the substance of his claim. The claim was also certified as being without foundation within the meaning of schedule 2 of the Asylum and Immigration Appeals Act 1993. The basis of that was that the applicant could be sent to France which is a safe third country within the meaning of paragraph 180K of the immigration rules.

It is said that the Secretary of State made errors of law; that it was firstly necessary for him to consider rule 180M which he did not. 180M was clearly applicable. It reads:

"When an asylum Applicant has come to the United Kingdom from another country which is a party to the United Nations Convention relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee Status."

That clearly applied word for word to this present applicant. What is said here is that that is a permissive facility for refusal; that it does not have to be done in that way but it is open-ended. That is to be contrasted, it is said, with regulation 180K which indicates the circumstances in which an application will normally be refused.

The first question therefore is: "Was 180M considered?" I am asked by Mr Tam, who appears for the Secretary of State, to say that it was. His contention is based firstly upon the document which is at page 27. That document is a form. A number of decisions are there set out, numbered 1 to 5. One of them is ticked. The instruction is to tick the appropriate box. When ticked and filled in it states:

"On 16th February 94 to refuse to grant leave to enter under paragraphs 180M and K of HC 725."

Therefore, it is said that clearly 180M must have been considered. To the contrary it is said that that is simply a form, and it could easily have been filled in incorrectly. It could likewise be that 180K was considered and not M. Nevertheless, that provides some evidence that 180M was considered.

The next matter which is relevant is that when this went before the adjudicator, the adjudicator herself said:

"I am satisfied that the case falls within paragraph 18OM."

She then went on to deal with it. Therefore, so far as that aspect of the matter is concerned, it appears that 180M was considered.

It is argued by Mr Tam that it is the adjudicator's decision which is the prime decision here. It is not necessary to accept that. All that I would say is that that is perhaps of some persuasion; that is, the fact that the adjudicator made the finding which she did and that decision would clearly have been available to Mrs Rankin of the Asylum Division who had to consider the appeal. It is hard to believe that she did not read those words. There is therefore some evidence in that.

It is then said, bearing that in mind, it is necessary to consider the letter which seems variously to be dated 14 or 9 February. It is the letter which comes from Mrs Rankin and goes to the applicant. In the last two lines of the third paragraph appear these words:

". . . and consider any new circumstances which you may raise with them in connection with your application."

It is said that those words must have been taken directly from rule 18OM. The words are certainly there. Does it appear, therefore, that the Secretary of State, through Mrs Symons, took rule 180M into consideration? It seems to me that the answer to that is that yes, he did. Quite clearly the letter of decision, whilst it must be looked at very carefully, should not be construed as a statute. In any event, I certainly cannot say that it was not considered.

What is therefore the situation? It is that rule 180M applying, it was open to the Secretary of State to refuse the claim to refugee status without substantive consideration; that being only permissive as is pointed out.

What is then the position about rule 180K? It is submitted by Mr Tam that rule 180M is, in effect, subsidiary to this particular rule. Certain it is that this being headed "Third country cases", and this being a third country case, it may be considered and it cannot be said that it is wrong to consider it. Is it properly applicable? It seems to me that it would be. It reads in this way:

"If the Secretary of State is satisfied that there is a safe country to which an asylum Applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status."

Again, those are similar words save that here there is the added qualification as to what the norm will be. He goes on to say:

"A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the Applicant elsewhere in a manner contrary to the principles of the Convention and Protocol."

In my judgment both the adjudicator and the Secretary of State were entitled for these purposes to consider France as a safe country. There is no reason to think that France would send the applicant to Zaire, or anywhere else, in a manner contrary to the principles of the Convention and the Protocol. I shall come in one moment to what may or may not happen.

Without reading the rest of that rule, it seems to me that it was applicable and that the Secretary of State was entitled to act under it. It is then necessary to ask what would happen upon the applicant being returned? In accordance with rule 180M he would have to be invited to raise any new circumstances with the authorities of the country which originally considered his application. That would be France.

Presumably, if it be the case, one of the considerations could be: "You considered my application some time ago. I have had cause to increase my fears, and that is why I went to England, thinking that you might send me back to Zaire and I had to avoid that." Certainly that is something which can be raised by him. I do not see that there is any advantage to him raising that in this country rather than raising it in France. It seems to me that it would be more convenient for it to be done in France where he was staying for some considerable time until he left to come to this country in January.

The next way in which this decision is attacked is in this way. It is said that the Secretary of State should have enquired into whether the French decision was right. Clearly that was not done. Because it was not done, it was certified that there had been no substantive consideration of his claim to refugee status. It is said that that was not the correct way. It may be possible for French courts to make mistakes just as English courts make mistakes; therefore, it would be proper to make inquiries to see whether the French court did have it right or, at the very least, to make an independent assessment here.

What is said by Mr Tam against Mr Gillespie's claim is this. That would be inviting those who have become disappointed applicants in one country to move from country to country making fresh applications. It would be a foolish situation if that were to be the reality. In those circumstances the very notion of the comity of nations that are bound by a treaty obligation under what used to be called the Common Market is such that it cannot be right for the Secretary of State to voice suspicions unless there is some reason for them. Of course if there is, it is right that they should not only be voiced but acted upon.

Here I see nothing improper in the way in which it is proposed to deal with this matter. In those circumstances this application must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Scudamore Gill, London W1; Treasury Solicitor