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 HIGH COURT
(MR. JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2
		Friday, 20th April 2001

Friday, 20th April 2001

1. LORD JUSTICE MAY: These are applications in asylum matters and accordingly require the court's most anxious scrutiny. It is particularly necessary for me to have this firmly in my mind in these two cases because the way in which the applications have been prepared and made by the applicants' solicitors leave a great deal to be desired and I must not allow views that I may have formed about the solicitors' efficiency and competence to affect my view of their clients' cases.
2. These are applications for permission to appeal out of time against decisions of Stanley Burnton J. on 17th January 2001. The judge was then dealing with renewed applications, again out of time, for permission to apply for judicial review of decisions of the Secretary of State, made initially on 8th February 2000.
3. The brief history of the matter is as follows. The applicants arrived in the United Kingdom by air from Latvia on 3rd November 1999. They were in transit for France, for which country they had valid entry visas. They claimed asylum in this country. Their account in interview included scarcely concealed statements to the effect that they would prefer to come to the United Kingdom for reasons unconnected with any claim for asylum and that they had planned to try to do so.
4. On 2nd February 2000 the French authorities accepted responsibility for the determination of their asylum claim under the provisions of the Dublin Convention. On 8th February 2000 the Secretary of State refused their asylum claim on safe third country grounds and certified that they could be removed to France under section 2(2) of the Asylum and Immigration Act 1996. Pursuant to this decision and certificate, removal directions were set for 30th March 2000. On the immediately preceding day (29th March 2000), the applicants' solicitors indicated an intention to apply for judicial review of the Secretary of State's decision and certificate, and an application for permission to apply for judicial review was lodged on 6th April 2000. By letter dated 19th May 2000, the Secretary of State gave detailed reasons for the decision to remove the applicants to France. I shall return to the contents of this letter later in this judgment.
5. On 25th September 2000 Collins J. refused permission to apply on paper, saying that the letter of 19th May 2000 provided a complete answer to the claim. On 3rd November 2000 the applicants were given notice of removal directions for 10th November 2000. On the immediately preceding day (9th November 2000), the application for permission was renewed, over a month out of time. No proper reason was given for this delay. The applicants' solicitors simply stated that the delay was no fault of the applicants at all but rather an administrative oversight on the solicitors' part. The oral hearing of the renewed application was listed for 30th November 2000; but it was adjourned when the applicants' solicitors, true to form, produced an expert report from Dr. Melvin on the morning of the hearing. The Secretary of State considered this report and responded to it in a second detailed letter dated 15th January 2000.
6. At about the same time, the applicants submitted a further report from Dr. Melvin on which they proposed to rely at the hearing before Stanley Burnton J. on 17th January 2001. Dr. Melvin's first report had apparently been prepared for a quite different case. The second report was specific to these particular cases. Stanley Burnton J. refused permission on 17th January 2001.
7. On 5th April 2001, for the third time, removal directions were set for 10th April 2001. For the third time, on the immediately preceding day (9th April 2001), the applicants' solicitors gave notice of an application to the Court of Appeal for what ought to have been expressed as permission to appeal out of time against Stanley Burnton J.'s decision but which was actually expressed as a renewed application for permission. The only reason given for the delay by the applicants' solicitors is that, due to pressure of work, the deadline to lodge the measures was overlooked.
8. In the circumstances, it is scarcely surprising that the Treasury Solicitor questions the credibility of such reason as is advanced for this delay and is of the view that the applications to this court are made in an attempt to delay removal and constitute an abuse of court procedure and the immigration system. Certainly in my judgment no proper reason whatever has been given for the delay in making the application with which this court is dealing this morning.
9. Because this is a safe third country Dublin Convention case, the Secretary of State has not considered in detail the substance of the applicants' claim for asylum; but he has (as, in my view, he is entitled to do) considered the basic underlying circumstances for the purpose of considering whether or not to issue a certificate under section 2(2) of the 1996 Act.
10. The applicants are from Latvia. Latvia is a country which was, until the early part of the last decade, part of the Soviet Union. On the break-up of the Soviet Union, Latvia became a separate state. But there remain in Latvia a large number of people who are Russian or of Russian origin. They have, in certain circumstances which Dr. Melvin explains, a difficult time on occasions.
11. The applicants in this case are Russian or of Russian origin. They claimed, when interviewed, that they had been threatened on the telephone by unknown people and that, although they had reported this to the police, the police had been unable to trace who was responsible for the threats or (they would say) to protect them from future such threats. On this evidentially slender basis they claimed asylum. Their case, therefore, was and is that they have a well-founded fear of persecution from non-state agents from whom the state is unable to protect them. In the context of the section 2(2) certificate and the Secretary of State's contention that France is the country where their asylum claim should be determined, they rely on what is, in shorthand, referred to as the "protection gap", identified by the House of Lords in the case of R. v. Secretary of State for the Home Department ex parte Adan: if there is non-state agent persecution which the state is unable to protect people from, France will nevertheless return an applicant for asylum, whereas the United Kingdom will not. The applicants rely on their account of why they left Latvia and on the two reports of Dr. Melvin about conditions for Russians in Latvia generally.
12. The Secretary of State's reasons for issuing the certificate are encapsulated in paragraph 13 of the letter of 19th May 2000 which is in these terms: "The Secretary of State is satisfied that the rule of law applies in Latvia. He is satisfied that the Latvian authorities do not encourage, condone or tolerate unlawful acts from whatever source. Your client sought the protection of the authorities in Latvia, who were not unwilling to provide it. Your client, if his account is to be relied upon, reported the threatening telephone calls to the Latvian police who conducted and investigation. Indeed, your client has produced a copy of what purports to be a police document, signed by a senior police officer, registering his complaint and confirming that the matter was under investigation. That the police were not able to trace the perpetrator of the threatening telephone calls does not, in the Secretary of State's view, render the Latvian authorities 'unable' to protect, as no police investigation can be guaranteed success. The Secretary of State takes the view that the Latvian authorities' action in response to your client's complaint was, on the basis of the evidence provided by your client, entirely proper."
13. That letter was written in the case of one of the two applicants, but both applicants essentially have the same case and have been treated essentially in the same way.
14. The judge considered that the Secretary of State's reasons could not be impugned and that Dr. Melvin's report did not do so. The written grounds of appeal, beyond relying on the matters relied on before the judge, are, I regret to say, scarcely intelligible. Not so, however, Mr. Waheed's submissions, which are the only properly prepared and presented part of this application. They are essentially two. First, he relies on the decision of a Special Adjudicator in another asylum case in which a woman of Russian origin left Latvia in 1997 and claimed asylum in this country. Dr. Melvin's first report, apparently prepared for and relied on in that case, was referred to and the Special Adjudicator found, on balance, that a well-founded fear of persecution was established in that case. I find that decision of no assistance in this application. The issues were quite different and, needless to say, so were the facts. Dr. Melvin's report has to be seen in the context of the present case.
15. As to Dr. Melvin's reports, Mr. Waheed refers to passages in them which suggest that there is discrimination in Latvia against Russians or people of Russian origin, that some of it is by non-state agents and that the police or other state authorities are or may be unable to prevent it. The passages to which Mr. Waheed refers include the following from page 6 of Dr. Melvin's report: "While the Latvian authorities have established a range of laws to protect the population, they have found it difficult to combat unlawful elements in the country and the police have frequently been unable to protect the populace in the most basic ways."
16. Again from page 6:

"While it is impossible to comment on the exact circumstances of this case, there can be little doubt that the local authorities in Latvia are often unable to protect individuals adequately from ethnic discrimination."

17. The Secretary of State, having considered the reports, wrote this in the letter of 15th January 2001 at paragraphs 4 and 5:

"The Secretary of State has considered the contents of the expert opinion of Dr. Neil Melvin, however, he notes that this report was not prepared for this particular case..." ----

that is a reference to the first of the two reports ----

"...it appears to be incomplete and seems to date from 1997. The Secretary of State remains satisfied that the rule of law applies in Latvia and that the Latvian authorities do not encourage, condone or tolerate unlawful acts from whatever source. On your clients' own accounts, they sought the protection of their own authorities in Latvia, and the Latvian authorities were not unwilling to provide it. The Latvia police conducted an investigation into your clients' complaints and the mere fact that the police were not able to trace the perpetrator of the threatening telephone calls does not, in the Secretary of State's view, render the Latvian authorities 'unable' to protect as no police investigation can be guaranteed success.

5. As stated in his letter of 19 May 2000, the Secretary of State is aware that in France persecution under the 1951 Convention is recognised where the persecution emanates from, or is tolerated or encouraged by, the state or de facto state authorities. In cases where there is no state or de facto state authority, or where the persecution emanates from non-state agents and the state is willing but unable to protect the persons concerned, persecution is not recognised. In the latter case the persons concerned may well qualify for protection under other provisions of French law. However, the Secretary of State is aware that the French authorities accept that there is a recognised democratic state authority in Latvia that may reasonably be considered to be both willing and able to provide protection to those in fear of persecution from non-state bodies. Your client's cases cannot therefore be said to fall within the 'protection gap identified by the Court of Appeal in Adan."

18. The judge was not persuaded that the true burden of Dr. Melvin's reports was as suggested in submissions made to him. As did the judge, I have read Dr. Melvin's reports in full and carefully. They may, in my view, be summarised as follows. There have been historically considerable difficulties, criticised internationally, about the legal and practical arrangements in Latvia for the naturalisation of Russians living there. But since 1998 the law in Latvia has been improved and things relating to naturalisation are now better. These applicants do not complain in this court about difficulties of that kind.
19. The main difficulty, according to Dr. Melvin, for Russians generally in Latvia arises from legal requirements of various kinds about language qualifications. This can result in discrimination -- though not, I think, persecution. These applicants did not complain in this court about language problems. But in any event the language requirements are state-imposed and so would not qualify for consideration as an ingredient of a protection gap.
20. There are, according to Dr. Melvin, difficulties for Russians generally and for those with Soviet military connections in particular. Like the judge, I read the bulk of this as constituting discrimination, not persecution, but Dr. Melvin does speak of hostility towards Russians which might, at a stretch, amount to persecution in individual cases. It is questionable whether any or much of this would be regarded as persecution by non-state agents, but the single point is that in places the authorities, including the police, may be unable to control anti-Russian hostility and so provide adequate protection. Dr. Melvin's report does not, however, in my judgment, impugn the view of the Secretary of State, as expressed in the letter of 15th January 2001 (which I have quoted), that the rule of law applies in Latvia and that the Latvian authorities do not encourage, condone or tolerate unlawful acts from whatever source.
21. The single question in this application is and always has been whether the applicants have any prospect of impugning in judicial review proceedings the Secretary of State's view as expressed in paragraph 13 of the letter of 19th May 2000 and in the letter of 15th January 2001. In my judgment, they have no such prospect. If they could overcome the need for an extension of time, I would refuse them permission to appeal.
22. The Secretary of State's view, expressed in particular in paragraph 13 of the letter of May 2000, depended particulary on the information which the applicants themselves gave in their interviews as to what had occurred in their cases and as to the steps which the authorities in Latvia had taken in consequence of what they had complained about. It was, in my view, entirely open to the Secretary of State to reach the conclusion which he expressed in that paragraph in the circumstances of the case, and I do not consider that the material in Dr. Melvin's report goes any way to impugn that decision.
23. Accordingly, in my judgment there is no prospect that an application for judicial review in this case would succeed.
24. Additionally and separately, there is no case at all made out for an extension of time and, in the absence of Mr. Simon Winston to explain what, on his own account, is avowedly negligent conduct of his clients' case, I would concur in the Secretary of State's view that delaying making applications to the court, on three occasions now, until the day before removal directions were to operate appears to be an abuse of the court's process and of the arrangements for dealing with asylum claims.
25. These applications are dismissed.
ORDER: Applications dismissed; show cause order for applicants' solicitors to show cause why they should not pay personally the costs of this application and that below. (ORDER NOT PART OF APPROVED JUDGMENT)