England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2A 2LL Friday 17 August 2001

1. LORD JUSTICE SEDLEY: This is an unusual and troubling renewed application for permission to appeal. I can take the relevant history from the statement in support of the application to the Administrative Court made by Mr Emezie, the solicitor acting for the applicant, Yuksel Akpinar, who is a Turkish Kurd by origin.
2. In the mid-1990s the applicant was in Germany, where she eventually applied for political asylum. That application was entertained but refused. As far as this court is aware, Germany, like this country, recognises that not only the Geneva Convention but Article 3 of the European Convention on Human Rights will condition the possibility of return of such an applicant to her country of origin. However, before she was able to be returned following the failure of her asylum application, the applicant lost contact with the German authorities. They believed throughout that she went to ground in Germany where she has five siblings.
3. On her emergence in 1999 in this country, she insisted (but giving different dates at different times) that she had returned clandestinely to Turkey on a false passport but had suffered persecution and had fled again, this time to the United Kingdom. She arrived by Eurostar, undocumented, and claimed asylum on her arrival on 26 September 1999.
4. In response to her application, the Home Secretary investigated the history of her case and concluded, in agreement with the German authorities, that the applicant had not in the interim been in Turkey and that Germany was responsible, as indeed Germany accepted, under the Dublin Convention for the processing of her asylum claim. Accordingly, removal directions were made to send the applicant from here to Germany. That decision was sought to be challenged by judicial review.
5. On 28 July 2000, after an oral hearing, Scott Baker J refused permission. On renewal to this court on 24 August, Buxton LJ granted limited permission to apply. On 16 February 2001 the matter went back before Hooper J as a substantive judicial review application, but it failed for reasons which are central to this application. I shall return to them later in this judgment.
6. An endeavour was then made by the applicant's solicitors to appeal on the applicant's behalf against Hooper J's decision. They were initially refused legal aid. Events then overtook the proposed appeal. On 10 March 2001 the applicant was asked to attend an interview at the Waterloo offices of the Immigration and Nationality Directorate ("IND"). She was detained following the interview and removal directions were then made as had been proposed at an earlier date.
7. Mr Emezie was told that removal had been set for 16 March 2001 at 07.45 am. Meanwhile the Legal Services Commission was reconsidering the legal aid application and indicated that a decision would be given shortly before the intended time of removal. On counsel's advice, Mr Emezie attempted to freeze the situation by serving a one-stop notice on the IND. This was faxed to them, but in the absence of a prompt response a decision was made to apply for an injunction to the duty judge. Mr Emezie telephoned the Immigration Service at 18.20 pm on 15 March to tell them that this was so. He says he was told by Ms Martin, an Immigration Officer, that they had received the one-stop notice and cancelled the removal directions. According to Mr Emezie, Ms Martin said that the Immigration Service would be in touch the next day with further details. On the faith of that information, Mr Emezie did not arrange for any application to be made to the duty judge.
8. However, on the following morning, 16 March, at 09.45 am, a telephone call was received by Mr Emezie's office from the Chief Immigration Officer at Waterloo saying that, following receipt of the one-stop notice, an attempt had been made to cancel the removal directions but that not all parties had been advised because of a breakdown in communication. In consequence the applicant had been removed to Germany.
9. In the bundle of documents there is a fax dated 12.25 on 16 March (a matter of hours after the removal) from the Chief Immigration Officer at Waterloo which reads:

"As discussed this morning with Sonya Charles we regret that we have to tell you that your client Yuksel Akpinar was removed this morning at 07.45 to Germany.

We received your fax yesterday evening raising HRA issues and we advised the appropriate parties. Unfortunately there appears to have been a breakdown in communication and your client was taken to the flight and removed."

10. On the same day a letter was sent from the UK Immigration Service Dublin/Third Country Unit saying:

"The Secretary of State has now had the opportunity to consider the human rights claim your client has made and he is satisfied that it is entirely without merit. The Secretary of State remains fully confident that the removal of your client to Germany would not be in breach of the United Kingdom's obligations under the ECHR.

The Secretary of State has considered whether the authorities of Germany would return your client to Turkey in breach of her human rights. Germany is a full signatory to the ECHR and the Secretary of State has access to extensive materials that show it consistently and conscientiously respects the ECHR rights of individuals within its borders."

11. Before I turn to the judgments below which I have to consider, let me set out the case as put by Mr Kadri AC.
12. Mr Kadri submits that the applicant is entitled to be brought back to the United Kingdom for two purposes: (i) to enable her to pursue an appeal against Hooper J's judgment; and (ii) to make a separate section 65 claim under the 1999 Act for the recognition and protection of her right under Article 3 of the European Convention on Human Rights not to be subjected to degrading or inhuman treatment or to torture. The latter, as Mr Kadri readily accepts, is a claim which must either be accepted by the Secretary of State, in which case it will have succeeded, or on which any rights of appeal cannot be exercised in-country so that it would not, from that point, serve as a shield against removal.
13. I turn to the judgment of Hooper J of 16 February 2001. Because the list of points to which Buxton LJ's grant of leave referred in imposing limitations could not be found, Hooper J considered the case at large. He was asked to find for the applicant and therefore to quash the decision to issue removal directions on two principal grounds but with a third in the background.
14. I will deal with the third ground first. In the contention of the Secretary of State, the Dublin Convention was, on authority, not justiciable in courts. Mr Kadri tells me that there is a decision of this court, presided over by Lord Woolf, MR, as he then was, in a case called R v SSHD ex parte Ahmed and Patel [1998] INLR 570, in which it was decided that a legitimate expectation of Convention-compliant treatment could arise, according to that case, under Article 8 of the European Convention of Human Rights. He would argue that the same may be true of the Dublin Convention. I will accept for present purposes that this is viable. It is certainly a view which was notably taken, in broad terms, by the High Court of Australia in the case of Teoh and it therefore cannot be said to be beyond the bounds of what is arguable.
15. Accepting that, one still has to consider the substantive grounds on which it was intended to be said that the Dublin Convention had been breached. Without reading out Article 10 of the Convention as set out in full by Hooper J, he concluded that the protection did not apply to people who had been off the territory of the receiving member state for more than three months because paragraph 1(e) of Article 10 was not subject to that waiver. Paragraph 1(e) deals with an alien whose applications has been rejected by the member state and is illegally in another member state. That, in Hooper J's view, was plainly the case of this applicant.
16. Counsel for the applicant, however, argued that she was not illegally in this country. She had a perfect right, however she had gained entry, to claim asylum, and that is what she was doing. The argument was rejected by Hooper J and, despite the attractive submission by Mr Kadri, I not only agree with Hoooper J but do not see any possibility of this court coming to a different conclusion. Although, as is undoubtedly the case, a person who makes an asylum claim is entitled by the law of this country and by the Geneva Convention to have it entertained, however they arrived here, it does not alter the legal quality of their presence in this country. If that presence has come about illegally then it remains illegal even though removal or refoulement cannot occur until the asylum claim has been considered. The contrary seems to me unarguable.
17. There was a further argument which related to additional words which it was said should be read into subparagraph (e). It has not been reiterated before me today and it seems to me to be as poor as it seemed to Hooper J.
18. Lastly, there was a contest as to the factuality and tenability of the Secretary of State's acceptance that the applicant had never left Germany. This went to the availability of the section 65 claim that Mr Kadri has put in the forefront of his case today. The applicant's was, and remains, that she had suffered fresh persecution giving rise to a fresh foundation for her fear of future persecution, and also creating fresh evidence of the likelihood of torture contrary to the European Convention on Human Rights if she is refouled. Hooper J said:

"It is submitted that the defendant's decision that the claimant never left Germany is one that should be quashed by this Court. The Secretary of State relies upon a statement of Ian Geoffrey Taylor dated 9 January 2001. For reasons which are fully set out in that statement, the Secretary of State takes the view that this claimant never left Germany. He takes the view that her account of returning to Turkey and being persecuted there is made up. I have to ask myself, having read that statement, and in particular from paragraph 6 onwards, whether or not the finding made there by the Secretary of State is one which a reasonable Secretary of State could reach, bearing in mind always that any cases involving asylum involve anxious scrutiny.

I have some doubts about whether or not the Secretary of State in paragraph 10 was right to see her account as a possible self-serving attempt to take her application outside the scope of the Dublin Convention. Even so, it does not undermine the whole of that statement, and I take the view that he was entitled to reach the conclusion that he did."

19. Mr Kadri attacks that finding (or would if he was in a position to do so) as unreasoned and insufficient to deal with the issue with the care that is required in asylum cases. However, one has to look, as I have done on this application, at the statement to which the judge referred when he concluded that the Secretary of State had come to a decision which was open to him as to the true facts. I do not intend to read out the statement, but it is clear that it contains recitals of fact which the Home Secretary rightly or wrongly believed to be acceptable and which emanated, for the most part, from the German authorities. His conclusions were undoubtedly open to the Home Secretary if he accepted the facts. The statement refers back to an earlier statement of the same official dated 18 September 2000. Looking at that one sees a further foundation for the view that had been canvassed. I will return to those facts when I consider the possible viability of an appeal.
20. Sullivan J sat on 25 April 2001 to hear an urgent application, on notice, for an injunction to bring back the applicant. The facts, as now known to this court, are that the German authorities will, if asked, return the applicant to this country. The Secretary of State refuses to ask the German authorities to do so. That is why the court was asked to order him to make the request. Sullivan J declined to do so. He noted that the statement of grounds which was sent by fax to the immigration authorities at Waterloo on 15 March read as follows:

"The applicant contends that she would face a real risk of treatment contrary to Article 3 of the Human Rights Act 1998 [sic] if she is returned to Germany. This is because the German authorities have already refused her application for asylum and would seek to remove her to Turkey - a country where she fears persecution. The applicant further contends that she would suffer persecution on arrival in Turkey because she is a failed asylum seeker."

21. Sullivan J commented at paragraph 11:

"It seems that at 20 minutes pst 6 on the evening of 15th March an immigration officer informed the claimant's solicitors that the removal directions had been cancelled. A fax was sent to Germany to that effect, but was not received because the German fax machine was not working. In any event, at 7.45 on 16th March, Friday, the claimant was removed to Germany."

22. I shall refer to that later in this judgment. Harrison J had been asked, without notice, to make the order sought and had declined to do so. He put the matter over for hearing on notice before Sullivan J, who concluded that he should not make such an order essentially on three grounds.
23. First, as to Article 3, he considered that the fear referred to was unspecific and could perfectly well have been dealt with by Hooper J if the matter had been put before him. As to that, Sullivan J had before him a further paragraph of Mr Emezie's affidavit which I will quote:

"I have been directed to provide a written explanation as to why the document now relied on, ie 'the potential danger for Kurdish asylum seekers returned to Turkey' was not relied on, or referred to the Court during the judicial review hearing, and why the Human Rights Act was not raised during previous judicial review proceedings. All I can say is that counsel who represented [the] claimant in the High Court and in the Court of Appeal relied on the Human Rights Act, after it came into force on 2 October 2000, albeit in a different way. I am not entirely sure of the reasons why Counsel did not argue the case the way it is being argued now, although I suspect it was because the entire proceedings got bogged down in the Dublin Convention ground. The expert report we now rely on was in the Court Bundle but was not specifically referred to or considered by the Court."

24. That is a report by an expert, Dr David McDowall.
25. Sullivan J's second ground was that, regardless of the failure to raise the issue before Hooper J, there had been nearly one month following his decision in which it could have been raised with the Secretary of State. In the event, it was raised only on the eve of removal. The breakdown of communication would not have mattered if the application had been made sooner to the Secretary of State.
26. Thirdly, Sullivan J said that the evidence did not suggest that there was a refusal in Germany to give due effect to Article 3 claims. The problem was that it was being said that the applicant had had her chance and could not now raise the point, having not raised it sooner. Sullivan J referred to Mr Taylor's evidence, placing reliance on the practices and law of Germany. He therefore declined to grant injunctive relief.
27. Laws LJ, having considered the papers in support of the present application, wrote, in refusing it:

"I see no arguable ground on which Sullivan J's exercise of discretion can be assaulted. If there is some question of relying on any material not before the judge, it can be put before the Secretary of State. I am not, of course, suggesting that course should be taken or that it ought to have any particular result."

28. It seems to me, and I have heard argument only for one side, that no intelligible reason has emerged for removing the applicant when the very authority removing her, the Home Office, had cancelled its own removal directions, if what Mr Emezie was told about that cancellation was correct. The explanation which had evidently been given during the application to Sullivan J makes no sense to me at all. Whether or not the German authority's fax machine was working and capable of receiving the message seems to me to have nothing to do with the Home Office removing somebody for whom they had cancelled the removal directions in response to a request to do so.
29. But that is not an end of the matter before me. The question is whether sooner or later removal to Germany of this applicant was inevitable.
30. The evidence now contained in the bundle and sought to be relied upon more strongly than it evidently was below, is powerful evidence. It is evidence from an expert in Turkish affairs that, as a failed asylum seeker, a person in the applicant's position faces a near certainty of detention and a risk of being tortured, depending upon what the Turkish authorities believe her activities and connections to have been. Interestingly, Dr McDowall's evidence also suggests that Germany has been less ready than the United Kingdom to treat these as mere isolated incidents when evidence of them has been produced.
31. As to the section 65 point, the evidence before the court anticipated it. At paragraph 5 of his statement of 21 March 2001, Mr Taylor, in a statement which was before Sullivan J but not Hooper J, said:

"I have given some thought to the ECHR point raised by the Claimant, and can confirm to the Court that I would have certified it as being manifestly unfounded, under the terms of Section 72(2)(a) of the Immigration and Asylum Act 1999, which does not give the Claimant an in-country right of appeal under Section 65 of the 1999 Act. I would have certified the claim both on the basis of the Claimant's history, and the information which I have concerning Germany's consistent and conscientious adherence to its international obligations under both the 1951 Refugee Convention and the ECHR."

32. Mr Kadri submits that, if such a certificate were to be issued, as Mr Taylor predicts it would be, then it would be challengeable by judicial review. That may be right in principle, but upon what ground? Upon the ground, says Mr Kadri, that the applicant's account of the history of her movements was truthful. But that is an account which the Secretary of State has disbelieved and it brings us back to the same question as I identified earlier in relation to the last of Hooper J's grounds. Mr Kadri would have to be in a position to demonstrate that no reasonable Home Secretary, acting through particular officers, could have concluded that the applicant was not telling the truth when she gave her account of going back clandestinely to Turkey and only after a period there returning, this time, to the United Kingdom.
33. Having looked at the factual basis of the Home Secretary's view, it seems plain to me that, while it is of course contestable and while he could perfectly legitimately have come to a different view, there is simply no way in which a court could set about unravelling and reversing that view on the ground that it could not fairly or rationally have been arrived at.
34. If everything depended on the inexplicable events of 15/16 March, there might well be a case. But the exercise of the strong power to require the Home Secretary to take a step which he is not minded to take for the purpose of bringing the applicant back is something which could only be justified if it could be shown that upon being brought back she would have the advantage of real forms of recourse which will otherwise be denied to her.
35. So far as recourse to the ECHR jurisdiction is concerned, it is manifest that the applicant has had this in Germany, although, as the correspondence with the German lawyers makes clear, the opportunity came and went with her original asylum application in 1998. The German lawyers, Horner and Osswald, very sensibly consulted by Mr Emezie, have written to confirm that this is so.
36. Very much the same is true here. The applicant has never been in a position to make an asylum or human rights claim to the United Kingdom authorities because she has been regarded, and legitimately regarded, as continuously within the jurisdiction of the German authorities on both matters.
37. The proposed grounds of appeal against the decision of Hooper J are as follows:

(1) The judge erred in his construction of the Dublin Convention.

(2) The judge erred in his conclusion that the defendant was not bound by the terms of the Dublin Convention.

(3) The judge erred in upholding the findings made by the defendant that the appellant had never returned to Turkey.

38. I have given my reasons for considering that none of these is, or would in the future be, a viable ground of appeal.
39. What could the applicant hope to achieve if she were now brought back to the United Kingdom? The skeleton argument placed before this court by junior counsel (and I deal with this for completeness, because it is to Mr Kadri's submissions that I have primarily looked for grounds) suggests, in short, that the judge should have exercised his discretion in favour of ordering the return. The point has no independent existence: it depends upon grounds being shown.
40. Secondly, it suggests that, upon the evidence, the applicant faces a risk of torture which the German courts will not now consider. The latter is true, but there are good reasons, which are known, why it is so.
41. Instead, it is said, the German courts have sentenced her to three months' imprisonment for having gone to ground pending deporting her to Turkey. I have not dealt with this because Mr Kadri, rightly, has not regarded it as a material consideration. The applicant believes that she has been punitively sentenced for evading the German authorities at an earlier stage. The German authorities in correspondence have been quite clear that it is not so; she is being held pending her return to Turkey.
42. Lastly, it is said that, however late the point was raised, the Secretary of State is under an obligation, by virtue of section 75 of the 1979 Act, to consider it. Section 75 does not create any freestanding obligation. It is part of a group of sections setting out the one-stop procedure. Its purpose is to put applicants on clear notice that they must put all their claims, both Geneva claims and Strasbourg claims, forward at the same time. If, as I suspect, section 65 was meant and this is a typographical error, I have dealt with it.
43. I am not able to part with this application without expressing my serious disquiet about two things. One is the apparent breaking of the Home Office's word to the applicant's solicitors that she would not be removed on 16 March. It was on that word that legal action, however unfounded I have now held it to be, was withheld in order to keep her here. The fact that, as I have now concluded, nothing could ultimately have been gained by such legal action is relevant to the determination of the present application, but it could not possibly have been known to the Home Office who therefore have justified its breach of faith, and it has not been advanced directly as a formal justification. Indirectly, however, the letter, part of which I have read out and which followed immediately on the removal on 16 March, looks uncomfortably as if it is attempting such a justification. For all they knew, those who removed the applicant in breach of their word to her lawyers, were frustrating her right of recourse to the courts of this country. I would regard this, at least on the basis of the information at present before the court, as a matter of some seriousness.
44. The other point I would make is that this court, like other courts in the United Kingdom, sees a growing body of evidence that returned asylum seekers are not only routinely imprisoned on arrival back in Turkey, but that those who are believed by the Turkish police or military to have separatist or terrorist links may be tortured for information. It is an irony, if Dr McDowall is right, that Germany pays more attention to this than the United Kingdom. But a point may have to come in this country where these reports cannot be dismissed as isolated incidents.
45. I say this because the evidence before me, for what it is worth, suggests that this applicant may face such a risk. I know nothing of her background and so cannot quantify it. It may not be a serious risk, but because suspicion sometimes bears little relation to fact it may not be a negligible risk.
46. The ultimate problem is that this court, like the Administrative Court, is not the forum in which decisions of this kind are taken. That forum is designated by Parliament and is subject to statutory procedures all of which have been observed in this case. Their observance in relation to the applicant has itself twice been verified by the Administrative Court. This is why, albeit with the misgivings that I have expressed, I am driven to hold that an appeal against Sullivan J's refusal to enjoin the Home Secretary to request the applicant's return from Germany to the United Kingdom has no prospect of success. Equally, there is no other special reason why permission to appeal should be granted.
47. For those reasons, which I have set out at much greater length than is normal in these cases because of the causes for anxiety that have emerged, I refuse this application for permission to appeal.
Order: Permission to appeal refused. Legal Aid Assessment.