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Savas, R (on the Application of v the Secretary of State for the Home Department [2001] EWHC Admin 1062 (11th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1062
		Case No: CO/1599/01

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

11th December 2001

B e f o r e :

THE HONOURABLE MR JUSTICE HOOPER
____________________

The QUEEN on the application of MEHMET ALI SAVAS
Claimant

- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Manjit Gill QC amd Mr Nigel Wray (instructed by Michael & Co. for the Claimant)
Mr Ashley Underwood QC and Miss Lisa Giovannetti (instructed by the Treasury Solicitor for the Defendant)
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)
____________________

MR JUSTICE HOOPER:

This is an application for judicial review of the defendant’s decision on 10 April 2001 to certify as manifestly unfounded the claimant’s representations that his removal to Germany would constitute a breach of his rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR). The claimant, a Turkish Kurd, has been refused asylum in Germany by an Administrative Tribunal and that decision has been upheld on appeal by an Administrative Appeals Tribunal. The claimant had asserted that if he were returned to Germany and the German authorities decided to return him to Turkey, he would be at risk of torture, inhuman or degrading treatment in Turkey (Article 3). He had furthermore asserted that, in any event, his removal from this country would amount to a breach of his right to family life (Article 8). That latter assertion was based upon the fact that the claimant is married to a citizen of this country who has a daughter by a previous relationship.

Following a refusal on paper by Turner J, permission was granted by Collins J on 3 September 2001 who also ordered an expedited hearing. Although in the claim form it was alleged that the defendant was wrong to certify as manifestly unfounded the representations under both Articles 3 and 8, it seems likely that Collins J gave permission because of the Article 8 issue. Since Collins J did not limit the full hearing only to the Article 8 issue, I have considered both issues.

After Collins J granted permission a significant amount of extra material was served in support of the Article 3 arguments, some of which consisted of fresh evidence not before the German tribunals purporting to show how Turkey treats returning Kurdish failed asylum seekers. Following an undertaking from the defendant, there is now no dispute that he will not be returned unless Germany agrees that he will be given “doldung” (temporary admission) and an opportunity in Germany to submit an application for a reconsideration of his case in the light of that evidence. The claimant has lawyers to help him in Germany.

The background to this claim is set out in paragraphs 2 to 6 of a witness statement made by Ian Geoffrey Taylor, a Senior Executive Officer in the Immigration Service (Ports Directive) of the Immigration and Nationality Directorate of the Home Office and a senior caseworker of the Third Country Unit.

“2. The Claimant arrived in the United Kingdom at Dover on 16 September 1999 as an undocumented ferry passenger from Calais. He denied having previously sought asylum in any other EU Member State and claimed to have travelled clandestinely to this country from Turkey, concealed in a lorry from which he disembarked only when on board the ferry. This account was wholly untrue.

3. On 24 November 1999 the Claimant’s fingerprints and personal details were sent to Germany. On 31 January 2000 the German authorities confirmed that they had made a positive fingerprint match which established that the Claimant had entered Germany on 15 September 1996 and that he had made an application for asylum there which had been finally rejected with effect from 6 September 1999. The German authorities record the Claimant as having gone to ground as of 1 September 1999.

4. On 28 March 2000 Germany accepted the return of the Claimant and arrangements were agreed with Germany for his removal, set to take place on 28 April 2000. This removal was halted in the face of an application for permission to apply for judicial review. This application for permission to apply for judicial review (CO/1498/00) of the Defendant’s decision to certify his asylum claim in the UK under s.2 of the Asylum and Immigration Act 1996 was refused, after consideration of the papers, by Mr Justice Silber on 8 December 2000. At no time during these proceedings was the Claimant’s marriage raised as an issue.

5. By letter received on 17 November 2000, the Defendant was belatedly informed of the Claimant’s marriage to a British Citizen, Miss Sarah Louise Tonkin, which took place at Medway Register Office on 9 June 2000.

6. The Defendant understands that the Claimant and his wife first met in December 1999 and decided to marry in March 2000. The Claimant’s wife has a daughter from a previous relationship who was born on 24 January 1998. The Claimant, his wife and stepdaughter have lived together since the marriage.”

Article 3

The thrust of the submissions made by Mr Manjit Gill QC on behalf of the claimant are set out helpfully in his skeleton argument:

6. The evidence shows that, upon return to Turkey, the Claimant will suffer ill-treatment which will probably violate art 3. The Claimant is a Kurdish draft-evader and failed asylum-seeker who would be returning to Turkey without his own passport or identity documents. His background of links with the PKK and political protest in Germany makes ill-treatment all the more likely.

7. There is detailed background evidence on ill-treatment of returnees to Turkey and evidence that notwithstanding such risks the German authorities continue to remove large numbers of Kurds to Turkey. This gives rise to concern as to whether Germany is in fact properly complying with art 3 of the ECHR. Further evidence on this issue (of which the Secretary of State ought in any event to be aware) has been recently submitted. Those documents show that there are continuing concerns that Kurds are being removed from Germany to Turkey and are in fact suffering ill-treatment on return. Thus, whether or not appropriate laws and legal procedures exist in Germany which comply with the ECHR, the facts show that people are being deported to Turkey and are suffering or are at risk of suffering ill-treatment on return to Turkey. By way of example only, see at p.103, a report of German practice from ProAsyl (a prominent German non-governmental organisation) which indicates that Kurdish persons removed from Germany to Turkey have been subjected to risks which further evidence of persecution of returned person which is likely to be the ‘tip of an iceberg’, see also a further ProAsyl report dated August 2000 ‘From Germany to Turkish torture chambers’ (p.319 ffg) and note the evidence that 88 Kurds were forcibly returned to Turkey by the Germans in July 2001 and that 35 have been tortured on return (p.100-101, translation of p.97-99). The evidence as a whole compellingly shows that there are real risks on return but that, notwithstanding those risks, the Germans continue to remove, sometimes ‘in bulk’.

8. The Home Office’s own country assessment report acknowledges risks on return (e.g. p.252, 287-288 paras 7.34-7.42). Numerous Immigration Appeal Tribunal decisions show that asylum appeals have succeeded on the basis that returns to Turkey give rise to unacceptable risks: e.g. by way of example, see Immigration Appeal Tribunal cases of Okur (28.4.00) Mustafa (13.2.01) Bozyigit (2.4.01) Guvec (19.9.01).

9. In the light of this and the rest of the material produced by the Claimant, it cannot be said that it is clear and obvious without any doubt that the material may not lead an Adjudicator to the conclusion that there is a risk of removal from Germany to Turkey and that there is a risk of ill-treatment on return which violates art 3. It cannot be right to return the Claimant to Turkey via Germany (which in effect will be what will happen) when we would not return him to Turkey directly ourselves (or at least, having scrutinised the material at a hearing before an Adjudicator, we may not do so).

Shortly after he started opening the case Mr Gill wished to take me to the claimant’s account of what had happened to him when in Turkey. I indicated that before hearing his account I wanted to know what the German Tribunals had found. A few days before the hearing the claimant’s solicitor had served on the defendant what was to become pages 319-445 of the bundle. Included therein were some 60 pages relating to the proceedings in Germany. A précis had been prepared (page 382-383). Unfortunately neither the decision of the Administrative Tribunal nor of the Administrative Appeals Tribunal had been translated and nor had a summary of what the claimant had said when interviewed by the Federal Department for the Recognition of Foreign Refugees. Mr Underwood QC produced a translation of the decision of the Administrative Appeals Tribunal and of that interview. Mr Gill had had no opportunity to consider the accuracy of those translations. To be fair to the claimant this was an expedited hearing and that no doubt accounts for the failure to have the necessary translations. Mr Gill therefore sought an adjournment of the case.

Mr Underwood opposed the application for an adjournment. He submitted in a skeleton argument:

“5. In order to impugn to the Secretary of State’s certificate, the Claimant must establish that the Secretary of State could not lawfully conclude that Germany provides adequate protection under the ECHR.

6. To achieve that end, the Claimant has to overcome the conclusion of the Court of Appeal in Thangarasa [The Queen on the application of Sanita Yogathas and Sritharan Thangarasa v. Secretary of State for the Home Department [2001] EWCA Civ 1611] on this very issue as recently as 21^st September 2001:

‘It is entirely plain that, whatever detailed allegation may be made in respect of German domestic law, there is no prospect whatever of a failed asylum seeker who is asserting a risk of Article 3 ill-treatment in his country of origin being removed without having access to, in the last resort, the ECtHR. Further, it is equally clear that any judgment of that Court would be honoured, and that there are adequate procedures in place in Germany to safeguard against expulsion in the meantime’.”

In the light of that decision, so Mr Underwood submitted, this part of the application had to fail. He submitted that the claimant’s history of what had happened in Turkey as described by him for the purposes of these proceedings or in the interview with the Immigration Authorities or as found by the Tribunals as well the factual assertions in paragraphs 7 and 8 of Mr Gill’s skeleton argument were not relevant.

I decided that I would first decide whether Mr Underwood’s submissions were correct. If I decided that they were correct then I would go on to consider the Article 8 issue. If, on the other hand, I concluded that Mr Underwood was wrong, then the claimant would be given an opportunity to verify the translations produced by the defendant and also to translate the decision of the Administrative Tribunal.

Although I do not propose to rely on the following matters because the claimant has had no opportunity to consider the translations, I set them out in case my decision should be considered on appeal. When the claimant was asked during the investigation why he had been forced to leave Turkey and come to Germany, he gave as the reason what had happened at a May Day demonstration on 1 May 1996. Some 70-80,000 people had attended a demonstration against the order banning the May Day holiday. The police had watched and filmed the event and three of those involved on the protest had been killed. He himself had fought back when a policeman attacked him. The comrade who had given him the leaflets to hand out was subsequently arrested and under torture had given the claimant’s address. When the Turkish police searched the area he and his father decided that he should escape. He then spent four months in hiding before he left the country. He needed four months, so he told the investigators, because a lot of the immigrant smugglers cannot be trusted. He said that this was the only incident in which he had been involved.

In its reasons the Administrative Appeals Tribunal stated that it was established case law that “unassimilated Kurds from the emergency areas or bordering provinces of South East Turkey have an alternative option of internal flight in the West of Turkey”. The Tribunal went on to say:

“Following an unsuccessful application for asylum, persons of Kurdish ethnicity returning to Turkey who have not publicly drawn attention to themselves through political activity in exile, and who are not strongly suspected for other specific reasons of openly supporting the PKK or other organisations that are hostile to the state, also have the option of internal flight to alternative locations without being subject to excessive treatment that might support an asylum claim on return”.

The Tribunal went on to say that this assessment had not altered even after the arrest of the PKK Chairman, Ocalan. In the judgment specific reference is made to an Amnesty report which “only advises against deportation in cases where the person in question can be associated with the PKK or other pro-Kurdish organisations.” The Tribunal went on:

“Whether a Kurdish asylum seeker is suspected of such [association] depends, however, on the circumstances and specific details of each individual case and there is no standard solution.”

I turn to the précis prepared by the claimant’s solicitors. That summarises the conclusions of the Administrative Tribunal. The Tribunal did not accept as plausible the claimant’s account of the May Day events and drew adverse conclusions (so it appears) from the fact that he remained in Turkey for some four months thereafter and from the fact that he delayed making his asylum claim until some 3 weeks after his arrival in Germany.

Insofar as the German material is concerned I make the obvious point that the Secretary of State would normally be able to rely on material of this kind in deciding whether to issue a certificate. Reliance upon an asylum interview in the third country or upon the findings of Tribunals considering asylum claims could not normally render a decision perverse. Subject, therefore, to the verification of the translated documents I would have been disinclined to consider the claimant’s account of what had occurred in Turkey in the absence of a good reason for concluding that no reliance could be placed upon the German material.

I turn to the legislative framework.

Section 11 of the Immigration and Asylum Act 1999 makes provision for the removal of asylum claimants under standing arrangements with member States. Such an arrangement exists between this country and Germany.

Section 65(1) provides:

“A person who alleges that an authority has, in taking a decision under the Immigration Acts relating to that persons entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an Adjudicator against that decision ...”

By virtue of section 65 (2)(b):

“An authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. ”

Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, which, as defined in section 1, includes the rights and fundamental freedoms set out in Article 3.

Section 72(2) provides that a person may not appeal under section 65 while he is in the United Kingdom:

“If the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded”.

In this case the defendant so certified on 10 April 2001.

If the Secretary of State does not so certify (or if the certificate is subsequently quashed) then the decision to remove a person to a third country gives rise to a right to appeal to an Adjudicator, the right being exercisable from within this country.

There is no dispute that “manifestly unfounded” means plainly hopeless or practically hopeless. In other words, no appeal could possibly succeed.

There is no dispute as to the correctness of the following proposition. If a person’s expulsion from country A to country B (whether a contracting state of the ECHR or not), might lead to his return to country C in circumstances where there are substantial grounds for believing that he would face a real risk of being subjected in C to treatment contrary to Article 3, then A has a responsibility to ensure, under Article 1, that the person is not, as a result of the decision to expel, exposed to such treatment. A cannot fulfil that responsibility by merely relying, for example, on the arrangements made under the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. (See, for example, the decision of the European Court of Human Rights (“ECtHR”) in TI v. United Kingdom [2000] INLR 211 to which I turn later and see also R. v. Secretary of State for the Home Department, Ex parte Adan and Aitseguer [2001] 2 WLR 143.)

The issue in this case may thus be formulated in the following way:

“May the Secretary of State lawfully certify as manifestly unfounded an allegation that he is acting in breach of a person’s Article 3 rights if the Secretary of State is minded to return that person to Germany, if Germany may then return him to Turkey and if the allegation is made (and is not manifestly unfounded) that there are substantial grounds for believing that he would face a real risk on return to Turkey of treatment contrary to Article 3?”

Mr Gill submits that, given the evidence now submitted to the defendant, the defendant cannot lawfully so certify. He submits that the claim that the expulsion of the claimant to Germany would lead to treatment contrary to Article 3 in Turkey must be considered by an adjudicator.

If the case was considered by an adjudicator, it would be for him to decide whether there were substantial grounds for believing that the claimant would face a real risk of being subjected in Turkey to treatment contrary to Article 3. To do this the adjudicator would have to decide whether Germany would now return the claimant to Turkey, given the findings already made by the Administrative Tribunal and given the fresh evidence. If the adjudicator decided that there were substantial grounds for believing that Germany would now return the claimant to Turkey (taking into account any right to petition the ECtHR), then the Adjudicator would have to decide how Turkey treats persons who fall into the category of returning failed asylum seekers into which he finds the claimant falls. He would need to do this in order to answer the question: “Would the claimant face a substantial risk of being subjected in Turkey to treatment contrary to Article 3?”. Only if he answered “No” to that question could the claimant lawfully be returned to Germany, subject to any appeal and subject to any further application for judicial review here. If returned to Germany he could (presumably) renew his application there and rely on the fresh evidence. If the Adjudicator answered “Yes” , it would follow that he had reached different conclusions to those which he anticipated that the German tribunals would reach.

In Adan the issue concerned the different legal interpretations of the Convention relating to the Status of Refugees. Cases like that of the claimant would, if Mr Gill is right, be concerned with possible differing factual conclusions. If Mr Gill is right, there would be substantial implications on the standing arrangements made by member states under the Dublin Convention for the removal of asylum claimants.

I turn to Yogathas and Thangarasa upon which Mr Underwood relies. Both appellants were Tamil asylum seekers from Sri Lanka. Yogathas had applied for asylum in Germany. His application was refused, as was also his appeal. He came to the United Kingdom where he applied for asylum. The Germany authorities having accepted responsibility under the Dublin Convention for examining his asylum application, the Secretary of State certified that the conditions of section 2(2) of the Asylum and Immigration Act 1996 were fulfilled and gave directions for the claimant’s removal to Germany. The section 2(2) condition which was in dispute was that contained in sub-section (c) which states:

“That the Government of that country or territory would not send him [the asylum seeker] to another country or territory otherwise than in accordance with the Convention [the 1951 Geneva Convention for the Protection of Refugees].”

Richards J in refusing his application for judicial review of the decision to certify identified the issue: Whether, in the light of Adan and the evidence before the Court, Yogathas could lawfully be removed to Germany as a safe third country under section 2 of the Act.

The Court of Appeal, dismissing his appeal, concluded:

“That the German procedures under which section 53(6) of the Aliens Act is deployed produce outcomes, at any rate in the context of Tamil asylum seekers such as these two appellants, which do not involve the return of a claimant to his country of origin otherwise than in accordance with the 1951 Geneva Convention.”

Thangarasa fled from Sri Lanka and went to Germany where he claimed asylum. This was granted on appeal. Later whilst still living in Germany he was called back before the Court which decided that he could be returned to Colombo. He was no longer to be regarded as a refugee. He appealed against that decision but his appeal was dismissed. Thereafter he came to this country. Later Germany accepted responsibility for considering any application he made for asylum and the Secretary of State directed his removal to Germany. Thangarasa asserted that to do so would be to breach his human rights. The Secretary of State rejected that assertion as manifestly unfounded, as in this case.

The issue in that case was described by Collins J in his judgment in the following terms (paragraph 14 of the judgment of the Court of Appeal):

“What is said, in broad outline, is that the German procedures are not apt to ensure that someone who establishes that there are substantial grounds for believing that there is a real risk that he will be treated contrary to Article 3 if returned to Sri Lanka or, indeed, to other countries (but this case is concerned with Sri Lanka) will receive from Germany the protection that is required … That being so, it is submitted that it was not open to the Secretary of State to be satisfied that the claim was manifestly unfounded.”

Having set out the conclusion in the appeal of Yogathas to which I have already referred, Laws LJ, with whom Chadwick LJ and Sir Anthony Evans agreed, said (paragraph 61):

“If that is right, it is difficult to see what room in truth there can be for a finding that those self-same procedures nevertheless yield breaches of Article 3 of the European Convention.”

In Thangarasa Collins J had said that in TI the ECtHR had concluded that, taking into account “the whole of the German approach”, Germany did “provide the protection which is necessary to prevent there being a breach of Article 3 by the German authorities”. The ECtHR “was satisfied that Germany would not expel [him to Sri Lanka] in breach of the terms of the Convention”. The judicial review application therefore failed. (See paragraphs 63 and 64 of the Court of Appeal judgment). In his conclusions Laws LJ, dismissing the appeal, said that Collins J was “entirely right to reject the judicial review application for the reasons he gives” (paragraph 67).

The particular conclusions upon which Mr Underwood relies are to be found in paragraphs 65 and 66 of the judgment of Laws LJ.

“65. Mr Gill places great emphasis on materials before us which demonstrate the existence of a debate within Germany as to the practical efficacy of section 53(6); but this I think invites the court to form a judgment of fact and merit which goes beyond our proper remit. In any event I would accept Mr Underwood’s submission, set out in his skeleton argument at paragraph 9 thus:

‘(v) After exhausting all domestic remedies in Germany, the Appellant would have a right of individual petition to the European Court of Human Rights.

Germany would scrupulously comply with any request from the European Court of Human Rights (under rule 39) to suspend the execution of a deportation order. There has never been a report of the German authorities failing to comply with such an indication in the case of an order for deportation expulsion or removal.

It is the universal practice of the German Courts and Executive to comply with judgments of the [European Court of Human Rights] in proceedings in which Germany is a party.

There has been no case in which the [European Court of Human Rights] has found Germany to be in violation of Article 3 in respect of the deportation of a rejected asylum seeker.’

66. I should say that these are not mere assertions made on behalf of the Secretary of State. Chapter and verse is set out to vouch them, not least from the judgment in TI itself at pages 226H-227D and 230B-232B. Then at paragraph 13 of the skeleton:

‘It is entirely plain that, whatever detailed allegations may be made in respect of German domestic law, there is no prospect whatever of a failed asylum seeker who is asserting a risk of article 3 ill-treatment in his country of origin being removed without having access to, in the last resort, the [European Court of Human Rights]. Further, it is equally clear that any judgment of the Court would be honoured, and that there are adequate procedures in place in Germany to safeguard against expulsion in the meantime.’”

It was submitted on behalf of the claimant that I should not follow these conclusions. In support of this submission Mr Gill referred me to R v Secretary of State for the Home Department ex parte Turgut (CA) [2001] 1 All ER 719. The applicant was a 30 year old Turkish Kurd who entered this country in March 1993 illegally. He claimed asylum, a claim which was rejected by the Secretary of State and again by the Special Adjudicator. The Adjudicator found him “entirely lacking in credibility”. The applicant was a draft evader from Turkish military service. The Immigration Appeal Tribunal refused him leave to appeal against the determination of the Special Adjudicator. The applicant then challenged by way of judicial review the decision of the Secretary of State to refuse to grant him exceptional leave to remain, the alternative course being to remove him back to Germany as an illegal entrant (721J). His claim to exceptional leave rested on Article 3 of the Convention. Having been refused permission to apply for judicial review he renewed that application to the Court of Appeal which granted permission and retained the application for itself. In the words of Simon Brown LJ, with whom Schiemann and Thorpe LJJ agreed: (page 722 B-C)

“The very fact that the applicant has been found so hopelessly wanting in credibility is what turns this challenge into the test case which both parties now recognise it to be. It has to be put, and is put, on the unvarnished basis that any young male Turkish Kurd draft evader who is returned to Turkey as a failed asylum seeker without travel documents, will, by virtue of those facts alone, face a real risk of being subjected on return to Art 3 ill-treatment.”

The Secretary of State had concluded that there were no substantial grounds for believing that the applicant would be at real risk of Article 3 ill-treatment if returned to Turkey (723J). That decision was challenged on the grounds of irrationality. Having considered the authorities Simon Brown LJ concluded: (729E-F)

“That the domestic court’s obligation on an irrationality challenge in an Art 3 case is to subject the Secretary of State’s decision to rigorous examination, this it does by considering the underlining factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.”

He continued that the Court would not “pay any especial deference to the Secretary of State’s conclusion on the facts.” (729F)

Simon Brown LJ having considered the material concluded (734 E-G):

“Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of those like this applicant to Turkey, I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one.”

Subsequently the House of Lords granted leave to appeal. By the time the appeal hearing was due to start on 11^th December 2000, Part IV of the Immigration and Asylum Act had come into force. The Secretary of State agreed to conduct a reconsideration in the light of “the new material you have put forward, and in the light of all other material that is, or may become, available to him” (page 109). The Secretary of State further accepted that should reconsideration result in him maintaining his decision then the correctness of that decision could be resolved on the merits through a Human Rights Appeal pursuant to section 65 of the Act. By July 2001 the Secretary of State had not yet completed reconsideration of the issues.

Mr Gill also referred me to what had happened in the case of another Turkish Kurd, Altinok, whose situation had similarities to that of the claimant. Altinok’s application for permission to apply for judicial review having been granted, the full hearing was scheduled to take place on 11^th and 12^th October of this year. On 4^th October the Treasury Solicitor sent a letter to Altinok’s solicitors. The letter referred to further representations which had been made on 1^st October and 3^rd October by the claimant that his removal would be in breach of the United Kingdom’s obligations under Articles 3 and 8 of the European Convention on Human Rights. The letter stated the Secretary of State was considering that material and would not be in a position to reach a decision before 12^th October. The letter continues:

“But the Secretary of State is able to inform you that, should his decision be that, despite your latest representations, he maintains his decision to send the Claimant to Germany, the Secretary of State can at present see no reason to doubt that such a decision may lead to a right of appeal under s.65 of the Immigration and Asylum Act 1999.”

He was not however prepared to make a formal admission that there would be such a right of appeal. The letter continued:

“This is along the lines adopted in the case of Turgut and who, as you know, withdrew his appeal to the House of Lords.”

Mr Gill in a note sent to me after the conclusion of the case dated 31 October 2000 and copied to counsel for the defendant wrote:

“3) Altinok was settled after the judgment of Court of Appeal in Thangarasa (21.9.01), a case which did not concern Kurds. Given that the Secretary of State has taken so long to assess the material filed in relation to the Turgut proceedings, and given the basis of the agreement to withdraw the challenge in Altinok to the decision under s.2 of the 1996 Asylum and Immigration Act 1996 after the decision in Thangarasa, it is difficult to see how the Secretary of State can maintain the stance that the background material of risks in Germany and in Turkey does not matter and that, so long as Germany maintains a system of legal procedures which are in principle ECHR-compliant, no in-country s.65 right of appeal can arise and that the human rights claim is manifestly unfounded.”

Mr Gill also relied upon TI. The applicant, a Tamil from Sri Lanka, arrived in the United Kingdom and claimed asylum having previously unsuccessfully claimed asylum in Germany and having unsuccessfully appealed to the Bavarian Administrative Court. His claim was rejected by the Secretary of State without consideration of the merits on the grounds that Germany had accepted that it was the country responsible under the Dublin Convention 1994 for dealing with his asylum claim. Accordingly the Secretary of State had issued a certificate under section 2 of the Asylum and Immigration Act 1996 and directed his removal to Germany. An application for judicial review having failed the applicant applied to the ECtHR and argued that the United Kingdom’s conduct in ordering his removal to Germany from where he would be summarily removed to Sri Lanka violated Articles 2, 3, 8 and 13 of the Convention. The United Kingdom had submitted (225 H-B) that:

“This Court should be slow to find that the removal of a person from one Contracting State to another would infringe Art 3 of the Convention, as in this case, the applicant would be protected by the rule of law in Germany and would have recourse, if any problems arose, to this Court, including the possibility of applying for a r.39 indication to suspend his deportation. It would be wrong in principle for the UK to have to take on a policing function of assessing whether another Contracting State such as Germany was complying with the Convention. It would also undermine the effective working of the Dublin Convention, which was brought into operation to allocate in a fair and efficient manner state responsibility within Europe for considering asylum claims.”

Germany had argued: (227 C-D)

“This applicant could only be deported on the basis of a new deportation order in respect of which he could appeal to the Administrative Court with the opportunity within one week of lodging a request for interim judicial protection. The order could not be enforced until that request was decided by a Court. If the applicant was not satisfied with the review by the Courts he could file a complaint with this Court. In that context, the German authorities would scrupulously comply with any request by this Court under r.39 of its rules to suspend the execution of a deportation order.”

In its conclusions the Court held: (228 E-G)

“The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the UK to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Art 3 of the Convention. Nor can the UK rely automatically in that context on the arrangement made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution …”

The Court went on to say: (228-229)

“The Court has therefore examined below whether the UK have complied with their obligations to protect the applicant from the risk of torture and ill-treatment contrary to Art 3 of the Convention.”

The Court said that its “primary concern is whether there are effective procedural safeguards of any kind [in Germany] protecting the applicant from being removed from Germany to Sri Lanka” (230 B) in breach of Article 3 of the Convention. It concluded, having examined German law and procedure that “it is not established that there is a real risk that Germany would expel the applicant to Sri Lanka in breach of Article 3 of the Convention” (231 G-H) and rejected this part of the application as manifestly unfounded.

Although the Court said that its primary concern was whether there were “effective procedural safeguards”, it did refer to what actually happened in practice. It accepted the assurances given by the German government concerning its domestic law and practice and was satisfied that the applicant’s claims, if accepted by the authorities, would fall within the scope of section 53(6) of the German Aliens Act:

“There is, furthermore, no basis on which the Court could assume in this case that Germany would fail to fulfil its obligations under Art 3 of the Convention to provide the applicant with protection against removal to Sri Lanka if he put forward substantial grounds that he faces a risk of torture and ill-treatment in that country.” (231 E).

The Court did not, and did not need to, consider the United Kingdom submission that the ability to have recourse to the ECtHR was sufficient protection for an asylum seeker being returned to Germany. It did find that the mere fact that removal was in accordance with the Dublin Convention did not affect the responsibility of the United Kingdom to ensure that an asylum seeker is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Mr Gill submits that the Court would not have reached this conclusion if it had thought that recourse to the Court under rule 39 would be sufficient safeguard to enable the United Kingdom to expel the asylum seeker to Germany. However a right of recourse to the ECtHR which could in practice not be exercised would be insufficient. On the facts of this case that is not the case. The claimant will have an opportunity to make such an application should his applications in Germany fail.

Does the Secretary of State in deciding whether to certify representations of the kind made by this claimant as manifestly unfounded need to examine how in practice German tribunals decide Kurdish draft evader cases? In my judgment the answer, on the authority of Thangarasa, is “No”. In that case Mr Gill sought to argue “the practical efficacy of section 53(6)” of the Aliens Act. Laws L.J. said in the passage which I have already cited that: “this I think invites the court to form a judgment of fact and merit which goes beyond our proper remit.” Whether that passage is binding on me or not, it seems to me that Mr Underwood is right when he submits that this claimant cannot succeed in his Article 3 claim having regard to the Court of Appeal’s conclusion upon which he relies. None of the material upon which Mr Gill relies affects the binding nature of that conclusion. It is therefore not necessary to adjourn the proceedings to enable the claimant to consider the translations which have been prepared by the defendant. This part of the application therefore fails.

Article 8

The claimant submits that Germany would expel the claimant to Turkey in breach of his Article 8 rights (see paragraph 17 of the skeleton argument). The answer to that submission is the same as the answer which I have given to the Article 3 submissions.

I now turn to the claimant’s final argument: the Secretary of State was irrational in certifying as being manifestly unfounded the claimant’s assertions that removal to Germany would be a breach of his Article 8 rights.

The Article 8 claim is based on the marriage to Miss Tonkin and the fact that she has a three year old daughter from a previous relationship who lives with them.

Mr Taylor in his witness statement dated 1^st August 2001 has set out the reasons why, in the defendant’s view, the Article 8 argument is without merit:

The Defendant’s Consideration of Article 8 (the Second Ground)

17. The Claimant contends that the Defendant's decision to remove him to Germany would constitute a breach of Article 8 of the ECHR. The Defendant is satisfied that this contention is without merit and is manifestly unfounded.

18. The Defendant has considered all the evidence and representations, including the most recent Affidavit of Sarah Louise Savas, sworn on 5^th July 2001. In addition, the Defendant has approached this issue on the basis that the Claimant’s marriage is genuine and subsisting and that he, his wife and stepdaughter are residing together as a family unit. The Defendant attaches significant weight to this.

19. The question for the Defendant is whether the undoubted interference with the Claimant’s right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a firm, fair and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.

20. Parliament has set a mandatory requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose. The Defendant attaches great weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exceptional of circumstances. This approach has been considered and upheld by the Court of Appeal in the case of Amjad Mahmood [8 December 2000, AER (D) 2191]. The Court conducted a thorough review of the jurisprudence of the European Court of Human Rights and held in terms that the Secretary of State's approach conformed with Article 8 of the ECHR. In those circumstances, the Defendant is satisfied that an argument to the contrary would have no prospect of success on appeal to an Adjudicator.

21. The Defendant takes the view that it will be open to the Claimant to apply at any British diplomatic post overseas for the appropriate entry clearance to enable him to return lawfully to this country to resume his family life. He is confident that Germany will not summarily remove the Claimant to Turkey so it would be open to him to apply at a British Consulate or Embassy in Germany. But, even if Germany did remove the Claimant to Turkey, which the authorities there could lawfully and properly do in the absence of any further claim from the Claimant, this would only be in the case that there was no breach of Germany’s international obligations under the 1951 Refugee Convention or the ECHR. In that event it would be open to the Claimant to apply at any British diplomatic post in Turkey. In such circumstances the interference to the Claimants right to respect for family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed.

22. Although it was not determinative of the Defendants consideration he took into account that the Claimant and his spouse were well aware three months prior to their marriage that the Claimant's potential rights of residence in the UK were at best precarious, as he had been informed that his asylum claim had been refused and he was to be removed to Germany. Indeed, were it not for the suspensive effect of his initial application for permission to apply for judicial review, the Claimant would have been returned to Germany well before the marriage took place.

23. Also, there are no insurmountable obstacles to the Claimant and his wife living together should he satisfy the conditions required for him to return lawfully to the UK to do so. Any hardship experienced by the Claimant and his spouse would obtain only until such time as the Claimant had met and complied with the entry requirements for settlement in the UK as a foreign spouse.

24. In such circumstances the Defendant strongly believes that the temporary interference with the Claimant’s right to family life under Article 8 is outweighed in these particular circumstances when balanced against the Defendant's legitimate public interest concerns which are to:

ensure the economic well being of this country by properly controlling, by means of the entry clearance system, those who enter the United Kingdom;

prevent disorder, by discouraging others from circumventing the system; and to

protect the rights and freedoms of others who do follow the proper procedure to enter this country.

25. The Defendant has considered whether his legitimate aims can be achieved by means which would cause less interference to the Claimant’s rights. He is satisfied that they cannot.

26. In the circumstances, the interference to the Claimant's right to respect for his family life will be of limited duration as the Claimant will be able to apply to a British diplomatic post in either Germany or Turkey for the mandatory prior entry clearance to permit him to return lawfully to this country to resume his married life. The Defendant is satisfied in this particular case that the need to maintain the effectiveness of the control of entry to this country for settlement outweighs the interference with the Claimant's Article 8 rights.

Conclusion

27. The Defendant is left in no doubt that his decision in respect of the Article 8 aspect of this claim entirely conforms with the obligations under Article 8; and furthermore this approach has already been endorsed by the Court of Appeal in Amjad Mahmood. There are no factors which could properly distinguish this case from Amjad Mahmood, and there is no prospect that an Adjudicator could properly allow a s.65 appeal on Article 8 grounds. The Defendant is entirely satisfied that this is a clear case and that it is proper to maintain his view that it is manifestly unfounded.”

In a second witness statement (75-76) Mr Taylor sought to meet a suggestion based on a letter from the British Consulate-General in Dusseldorf (page 80) that an application for entry clearance would take “possibly months”. Mr Taylor stated, on the basis of speaking to an entry clearance officer in Dusseldorf, that “in normal circumstances, an application for entry clearance for settlement would take between 2 and 3 weeks to process”. I shall assume that Mr Taylor’s assessment is right.

In his skeleton argument, Mr Gill argued:

“12. The Secretary of State has accepted the marriage as genuine. He further accepts that there will be undoubted interference with family life. However, he contends that such interference is justified. In so doing, he lays stress on

the need to protect the UK’s economic interests by properly controlling the Entry Clearance system,

the need to prevent the disorder which would occur if everyone came to the UK and sought to stay on the basis of marriage without first obtaining an EC from abroad as the rules require and

the need to protect the rights and freedoms of others who do follow the proper procedures for entering the UK for the purposes of marriage.

13. However, this reasoning is defective. As to (a), no economic interests could possibly be jeopardised. If anything, they are probably assisted by the Claimant’s presence. The Claimant’s presence here does not impose any additional strain on the economy beyond that (if any) which would follow if the Claimant were admitted as a foreign spouse after first having obtained an entry clearance from abroad.

14. Point (b) seems to suggest that disorder will occur if the Claimant is allowed to stay and that others will be encouraged to ‘circumvent the system’ by seeking to come here to marry without a prior Entry Clearance. This suggests that the Claimant is seeking to circumvent the system and that he came here knowing that he would seek to stay here on the basis of marriage. But that is not true; and no such allegation has been made. He is not guilty of any bad faith or attempting to manipulate the system. Had he known before he came here that he would marry someone here (or had he intended to try to do that), then it could be said that he was trying to circumvent a system which requires that he first get an Entry Clearance from abroad. The Secretary of State’s argument here fails to draw a distinction between those who seek to enter for the purposes of staying here on marriage grounds and those who have arrived in the UK and who then happen to form a genuine marital relationship on the basis of which they apply to stay here. The latter category is not blameworthy in any sense. As they are parties to a genuine marriage there is no reason for requiring them to go abroad and get an Entry Clearance first; that would be entirely pointless.

15. Moreover, there is no reason to think that others will think that they can get away with coming here in order to marry without first getting an Entry Clearance. If they lie to an Entry Clearance Officer about their intentions, they will be illegal entrants and removable as such. But the Claimant has not lied. He merely came to these shores and asked openly for leave to enter as a refugee. Whilst that was being processed he happened to form a relationship with a British national. Nothing in this suggests any form of disorder or circumvention of immigration control at all.

16. Argument (c) is the ‘unfairness’ argument i.e. that those who wait patiently in the queue for Entry Clearances from abroad are prejudiced if someone from abroad seeks to stay here on the basis of marriage in circumstances where the rules say they ought to get an Entry Clearance from abroad. This sort of point appealed to Laws LJ in Mahmood [2001] 1 WLR 840. However, this argument fails to draw a distinction between the two categories mentioned in para 14 hereof. The circumstances in Mahmood were different and therefore Mahmood is distinguishable, particularly given that no issue was raised as to the distinction. Furthermore, the Mahmood approach to reasonableness is rooted in the old-fashioned Wednesbury test which was described by Lord Cooke in Daly [2001] 2 WLR 1622 as a most retrogressive decision. In Daly the HL took the opportunity to qualify the Mahmood approach to reasonableness (see Lord Steyn, paras 25-28), preferring the approach of proportionality. This gives rise to a more intrusive form of review which is much tighter than the test of reasonableness.

17. …

18. The idea that this sort of consequence can be avoided by making an Entry Clearance application from Germany to enter the UK is unrealistic. Germany will undoubtedly act quickly and remove the Claimant to Turkey, a fact which the Secretary of State has already accepted. Even if the Claimant manages to stay in Germany for a short time, that is not likely to be enough to lead to a sufficiently fast decision by the British Embassy. Given that the Germans have already concluded that the Claimant is properly returnable there is no reason why they should let the Claimant remain merely in order to make an application to the British Embassy for an Entry Clearance to re-enter the UK as a spouse. The German line will be that he can make such an application in Turkey; …

19. Thus, balancing all the factors the removal to Germany will violate art 8.

20. If as the Secretary of State concedes, the marriage is genuine, there is no reason to think that the Claimant, if removed, will not be able to satisfy the immigration rules (para 281 of HC 395) applicable to those who seek to enter on the basis of marriage. On that basis, little point is served by removing him.

21. Alternatively, if the Secretary of State is contemplating nevertheless that the Entry Clearance Officer may seek to rely on aspects of the discretionary rules in para 320 of HC 395 so as to refuse entry clearance then the effect of removal will be to separate the Claimant from his wife and the child of the family for several months and perhaps permanently in circumstances where great stress and anxiety is likely to be caused to several persons particularly in relation to the fate of the Claimant. It is therefore disproportionate to seek to remove the Claimant.

22. In these circumstances, the art 8 claim cannot be said to be hopeless.”

In Mahmood [2001] I WLR 840, the facts, as taken from the judgment of Laws L.J. were:

“51. The applicant who was born on 16 August 1968 is a citizen of Pakistan. On 26 November 1994 he entered the United Kingdom clandestinely in a lorry, or was later to claim that he had done so. On 11 January 1995 he applied for asylum. His claim was refused on 27 October 1997 and he was served with notice of removal directions as an illegal entrant. However a week earlier, on 20 October 1997, he had married Salma Yashin, who is a British citizen. In fact she had herself come from Pakistan and with members of her family had settled in the United Kingdom when she was about 13. Her parents, brothers and sisters live in this country.”

The Secretary of State refused leave to remain on the basis of marriage and, anticipating the coming into force of the Human Rights Act 1988, he concluded that removal to Pakistan would not constitute a breach of Article 8. His application for judicial review failed and the Court of Appeal dismissed his appeal from that decision.

Laws LJ said (paragraph 23):

“Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect—as it is—that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”

Lord Phillips M.R. having considered various decisions, said (paragraph 55):

“From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls. (1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. (6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.”

In the light of the reasons given by Mr Taylor and of the decision in Mahmood it cannot be said that the Secretary of State was irrational in certifying as being manifestly unfounded the claimant’s assertions that removal to Germany would be a breach of his Article 8 rights.

Conclusion

For these reasons this application for judicial review fails.