England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 97/7618/D

(MR JUSTICE KAY )

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday 18 December 1997

B e f o r e:

LORD JUSTICE HOBHOUSE

LORD JUSTICE MILLETT

SIR ROGER PARKER

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

R E G I N A

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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

EX PARTE MOHAMMED KERROUCHE

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR A NICOL QC and MR J GILLESPIE (Instructed by Messrs Jane Coker & Partners, London N15 4NP) appeared on behalf of the Applicant.

MR N PLEMING QC and MR R TAM (Instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

JUDGMENT

LORD JUSTICE HOBHOUSE: It falls to us to give our judgments on the renewed application for leave to move for judicial review. Leave was refused by Kay J on 15 December 1997. It has come before us as a matter of considerable urgency at short notice. The case concerns whether or not the applicant should be removed from this country. It is a matter of importance to him.

The application is made in respect of a motion which seeks relief that a decision of the Secretary of State, dated 2 December 1997, to proceed with the removal of the applicant to France be quashed, and asks for an order of mandamus requiring the Secretary of State to consider substantively the applicant's asylum claim.

We have before us a full skeleton argument on behalf of the applicant and a skeleton argument lodged by the Secretary of State. We have heard oral argument on the applicant's behalf from Mr Nicol QC, for which we are grateful. We did not find it necessary to call upon counsel for the Secretary of State. There were a number of points which were raised by Mr Nicol in his argument. They were inter-related but, if on any critical point, his arguments were not sufficiently persuasive, then it must follow that his application must fail because, if it depends on the success of a number of interlinked arguments, it depended on each of them and each must have sufficient persuasive force to justify the grant of leave to move.

This is an immigration case. The relevant history falls into two parts. The first part relates to the events down to the summer of this year. The applicant was an Algerian citizen, born in Algeria in 1960. In 1992 he left Algeria and went to France. It is not necessary to make any observation about what happened whilst he was in France, but on a date in April or May 1995 he left France and entered the United Kingdom illegally. He was therefore an illegal entrant. That was not discovered until April 1996 when he was arrested. He was promptly served with a notice of a decision to deport him on the grounds of the public good. He responded by making an application for asylum dated 7 May 1996.

On 12 June 1996 the Secretary of State refused the asylum claim. The applicant, as he was entitled, sought to appeal. That appeal had to be considered by the Special Adjudicator, Mr Fox. It was fully considered and on 29 August of the same year his appeal was dismissed, his application for asylum being refused. However, the applicant was not content with that position and he sought judicial review. He obtained leave and the matter was heard before Tucker J in December 1996 when the application for judicial review was dismissed. He appealed to the Court of Appeal in July of this year. The Court of Appeal dismissed his appeal. The applicant then petitioned for leave to appeal to the House of Lords, which petition was refused in October 1997. It will be appreciated from that chronology that he was, in effect, allowed to remain within the United Kingdom, but subject to detention, until after the House of Lords had finally refused his petition.

The basis of upon which his application for asylum was refused by the Secretary of State, and the refusal was upheld by the Special Adjudicator, was under paragraph 334 (iii) of the Immigration Rules. Paragraph 334 states:

"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived in a port of entry in the United Kingdom; and

(ii) he is a refugee, as defined by the Convention and Protocol; and

(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."

Paragraph 336 says:

"An application which does not meet the criteria set out in paragraph 334 will be refused."

The view taken by the Secretary of State, and upheld by the Special Adjudicator, was that France was a safe country to which he could be required to go and accordingly his asylum application should be refused. The latest date upon which it can be treated as having been refused is 12 June 1996. If it be relevant what happened subsequently on the judicial review hearings, the final hearing which was determinative was that of the Court of Appeal on 31 July 1997.

By the summer of 1997, it was clear that a decision had been taken which was valid and unchallengeable, that his asylum must be refused. It should be noted that the area of dispute which had existed to that time concerned the question of sending a person back to France, which has been the subject of a number of decisions, both by adjudicators and by the courts.

That leads to the second part of the history. Whilst the applicant was awaiting for the House of Lords to dismiss his petition, the Dublin Convention came into force. It is agreed, and it is clear, that it came into force in accordance with its terms on 1 September 1997. The Dublin Convention introduces a different regime as between the parties to the Convention. The parties to the Convention are the Member States of the European Union. The Convention is informally entitled "The Convention determining the State responsibility for examining applications for asylum lodged in one of the Member States of the European Communities". It derives from the changes that had been made among the Member States to the treatment of our borders and the joint objective of creating an area without internal frontiers in which the free movement of persons shall be ensured.

That created a number of consequential problems, one of which was how asylum seekers should be treated as between the various Member States. That is the issue that the Dublin Convention addresses. It is also to be observed that it is in recognition of the common humanitarian decision of the Member States, and it is directed to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention. It must also be noted that it is expressly without derogation from the obligations of the Member States under the Geneva Convention and the Protocols to it.

The practical problems which it addresses relate to the responsibilities of various states among themselves to examine asylum applications. One of the objectives is to ensure that applicants for asylum are not referred successively from one Member State to another without any of the those states acknowledging itself to be competent to examine the application for asylum.

Simplifying the matter sufficiently for present purposes, the scheme is that it effectively pools the European Union countries for asylum purposes. It has the result that any country to which an application for asylum is made shall consider it fully. Article 3(1) provides that Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.

Under that Convention it is not sufficient for a country to say, "We can return to you to a place of safety", to wit another Member State. They must also deal with the question whether the applicant must be returned from any Member State to some other country. One supposes that in the case of this applicant the relevant country would be Algeria. All this is simplification, but it indicates the context in which the present application has been made. The applicant's application for asylum in this country has been refused on legitimate grounds, namely that he could properly be returned to France which was, in Convention terms, a safe place.

It is against this background that the applicant's solicitors sought to introduce into the consideration of the applicant's position the Dublin Convention. They wrote two letters to the Treasury Solicitor, from which I quote shortly. On 29 September they said:

"....the issue of the Dublin Convention, we would be grateful if you would consider the following:-"

and then they referred to the position of the applicant under the Dublin Convention. On 26 November they reverted to the same topic and they repeated their arguments in connection with the Dublin Convention. They said:

"We note your [the Treasury Solicitor's] contention that the Convention only applies to claims for asylum made after 1.9.97."

The responses that the Secretary of State had made to that through the Treasury Solicitor are contained in letters of 13 October and 2 December, one of which is referred to in the letter from which I have quoted, and the other is referred to in the application for judicial review. The letter of 13 October says:

"I write further to my letter of 3 October 1997. In your letter of 29 September, you suggest that the Dublin Convention should determine which country considers your client's asylum application. My client does not accept that that is correct. The Dublin Convention applies only to claims for asylum made after 1 September 1997, the date on which it came into force. You will recognise that this is implicit in Article 3(6) which provides that the process for determining the member state responsible shall start as soon as an application for asylum is first lodged with a member state."

Similarly, in the letter of 2 December they said at paragraphs 47 and 48:

"47. You asked in these letters that Mr Kerrouche's case be considered in accordance with the Dublin Convention and you asserted that the United Kingdom would be the appropriate country to consider his asylum application under the Dublin Convention. The Treasury Solicitor replied on 13 October 1997. As stated by him in that letter, the Dublin Convention applies only to claims for asylum made after 1 September 1997, the date on which it came into force; Mr Kerrouche's claim was made well before that date.

48. The provisions of the Dublin Convention itself demonstrate that the Secretary of State's interpretation of the Dublin Convention is correct."

The letter then goes on to develop that point of view and certain implications which arise from it.

It is said that the Secretary of State has treated the point raised by the applicant's solicitors on the Dublin Convention as a potentially relevant point and he has made a mistake in his understanding of the effect of the Convention. Therefore, it is said on behalf of the applicant, that he should be entitled to move for judicial review of the decision implicit in the letter of 2 December.

The question we have to consider is, "Are the relevant points arguable?" I have concluded that, in an essential respect, the arguments are not sufficiently sustainable to justify the giving of leave. Mr Nicol summarised the propositions that he advanced in paragraph 6 of his skeleton argument:

"The applicant's case is not that he can rely directly on the [Dublin] Convention, nor that (without more) the SSHD is obliged to take the convention into account in his decision-making. Rather he submits that:

a. the SSHD has taken his own interpretation of the Convention into account;

b. that interpretation is erroneous;

c. an erroneous interpretation of the Convention is not a matter which the SSHD should have taken into account;

d. the decision can therefore be impugned on conventional public law grounds as one which was influenced by an immaterial factor."

It was upon points a and b that Mr Nicol developed his submissions, c and d being consequential upon a and b. He clearly has some force in what he says under heading a. It was a matter which was referred to by the Treasury Solicitor on behalf of the Secretary of State and it does appear to have been treated as material by the Secretary of State. Under those circumstances, whether or not the Secretary of State was under any obligation to take into account the Convention, there is a question raised as to whether or not there is some error of law in the reasoning. That can be illustrated by what was said by Lord Hope in an extradition case arising under a different Convention. That is the case of R v Secretary of State for the Home Department, Ex parte Launder [1997] 1 WLR 839. The relevant passages are at pages 866-7. At page 867 he said:

"If the applicant is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy that [counsel] directed his argument."

This approach is in line with decisions of the Divisional Court. We have been shown in particular what was said by Sedley J on 9 December 1994 and Latham J, as reported at 96 Imm AR 194 in the case of Ex Parte Zighem , and what was said by the Carnwath J on 2 April 1996 in the case of Ex parte Watson . I stress that we have not called upon Mr Pleming on behalf of the Secretary of State. Therefore, for present purposes, I proceed on the assumption that those points are fully arguable and are not an obstacle to the granting of leave to move for judicial review.

That leads one to the second point as to whether or not the Secretary of State in any material respect misconstrued the Dublin Convention. The salient feature about the present case is that this was an application for asylum which had already been refused well before the Dublin Convention had come into force. This creates in my judgment insuperable difficulties for Mr Nicol because he has to, and does, submit that nevertheless the Dublin Convention applies to the application which was made in May 1996 and had already been refused. I do not see how he can sustain that argument. In my judgment it is clearly contrary both to the express and implicit terms of the Convention.

Article 1 of the Convention says:

"(b) Application for asylum means: a request whereby an alien seeks from a Member State protection under the Geneva Convention by claiming refugee status....

(c) Applicant for asylum means: an alien who has made an application for asylum in respect of which a final decision has not yet been taken."

Article 1(d) incorporates the new regime under the Dublin Convention, says:

"Examination of an application for asylum means: all the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the State responsible for examining the application for asylum pursuant to this Convention."

Article 3(6) says:

"The process of determining the Member States responsible for examining the application for asylum under this Convention shall start as soon as an application for asylum is first lodged with a Member State."

Article 11(3) states:

"The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State."

Those provisions of the Convention appear to militate against the conclusion for which Mr Nicol has to contend. In this case, the only application that has been made has already been refused. There is no room for any application of the Dublin Convention. The use that the applicant seeks to make of the Dublin Convention in order in some way to invalidate a decision which has been made long before the coming into force of the Convention seems to be seriously misconceived.

Therefore, I consider that the Secretary of State was in all essentials right to say that the Dublin Convention did not apply to the case of this applicant and, accordingly, there was nothing wrong in the previous refusal of asylum that had properly been made now being carried into effect. It follows therefore that the application for judicial review would be bound to fail and the application for leave should likewise be refused.

I recognise that the grounds that I have given are slightly different from those given by the judge to which the application was first made. He felt that it was possible for him to dispose of the matter on more summary grounds. It may be that he did not have the advantage of the fully developed argument by Mr Nicol that this court has had. Whatever the reason, we have had a fully deployed argument before us and, having considered it fully, I have arrived at the conclusion that this is not a case for the grant of leave to move for judicial review.

LORD JUSTICE MILLETT: I agree. If the question was whether the Dublin Convention applied only to applications made after the Convention came into force, so as to exclude pending applications which had not yet been finally determined, it would in my view merit further consideration. But the question is whether it applies to an application which has been made and finally determined before the Convention came into force. The contention that it does apply to such an application is, in my judgment, quite unarguable.

I accordingly agree that the application should be refused.

SIR ROGER PARKER: I agree with both judgments.

Order: Application refused. Legal Aid taxation appellant's costs.