England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 May 2003

Mr Justice Maurice Kay:

1. The Claimant is from Kosovo and is an ethnic Albanian. On 1 June 1998 he left Kosovo and went to Italy. Whether or not he claimed asylum in Italy is uncertain. What is clear is that he was almost immediately made the subject of an expulsion decree by the Italian authorities. Fearing that he was on the point of being returned to Kosovo, the Claimant fled to England, arriving on 12 June 1998, whereupon he claimed asylum. The subsequent history is complicated but the essential facts are as follows. On 29 September 1998 the Secretary of State requested the Italian authorities to accept the return of the Claimant under the Dublin Convention. On 24 November they agreed to do so. Accordingly, on 30 November the Secretary of State refused his asylum claim without substantive consideration. There followed the Claimant's first application for judicial review which was soon adjourned pending the outcome of the Adan litigation, which culminated in the decision of the House of Lords in December 2000, [2001] 2 AC 477. By then the Claimant's wife and two children had arrived in this country on 27 October 2000. Three days later she claimed asylum, naming the two children as dependants. The two children are a girl, Elida, who was then aged 15, and a son, who was then aged 8.
2. On 19 January 2001, the Claimant's solicitor invited the Secretary of State to consider his application substantively in the light of Adan and the arrival of his wife and children. There was further correspondence between the solicitor and the Secretary of State. On 18 April 2001 the Secretary of State refused the wife's asylum claim. She lodged an appeal under sections 65 and 69 of the Immigration and Asylum Act 1999. That appeal has yet to be determined. On 17 October 2001 Elida applied for asylum in her own name. Her application is based upon an account of a traumatic experience in Kosovo, the details of which are still not known to the Claimant, and to which I shall not refer in this judgment. This application has not yet resulted in a decision by the Secretary of State.
3. On 20 December 2001, the Secretary of State withdrew his original certificate in the Claimant's case and re-certified the claim under section 11 of the 1999 Act. On 11 February 2002 the Secretary of State declined to consider the Claimant's asylum application substantively and certified his linked human rights claim, which was based primarily on Article 8, as manifestly unfounded under section 72(2)(a) of the 1999 Act. The Claimant sought to amend the original application for judicial review so as to challenge that decision. However, on 18 February 2002 he withdrew that application in order to make a second application for judicial review.
4. Before the second application was lodged, the Secretary of State announced a change in his policy on the exercise of discretion in safe third country cases where family ties in the United Kingdom are claimed. The previous policy, which was set out on 21 March 1991, was that

"potential third country cases would normally be considered substantively where

(a) the applicant's spouse is in the United Kingdom;

(b) the applicant is an unmarried minor and a parent is in the United Kingdom;

(c) the applicant has an unmarried minor child in the United Kingdom. (In all cases 'in the United Kingdom' should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker)."

In R (on the application of Nadarajah) v. SSHD [2002] 2595 Admin, Stanley Burnton J held that, contrary to the submission there made on behalf of the Secretary of State, such a spouse, parent or unmarried minor child would still be "in the United Kingdom" as an asylum seeker after refusal of asylum by the Secretary of State but before the determination of a pending appeal. The 1991 policy was changed on 22 July 2002. The significant change for present purposes is that "in the United Kingdom" is now to be taken as meaning

"with leave to enter or remain or on temporary admission to this country as an asylum seeker prior to an initial decision on their application."

On 30 July 2002, eight days after the commencement of the reformulated policy, the Secretary of State again refused to consider the Claimant's application substantively. He maintained the certificate and indicated that the Claimant would now be removed to Italy. That was the catalyst for this second application for judicial review. It was originally based on a number of grounds of challenge. However, in a careful judgment handed down on 7 February 2003, Wilson J granted permission only in respect of one ground of challenge.

5. It is common ground that, under the 2002 policy, the Claimant cannot invoke the pending appeal by his wife. She is no longer "an asylum seeker prior to an initial decision" on her application. The issue now relates to the position of Elida. The case for the Claimant is that her free-standing application in her own name on 17 October 2001 is not yet the subject of "an initial decision". (Apparently this is the result of administrative oversight in the Home Office). Accordingly, the Claimant seeks to rely on paragraph (c) of the policy. The primary case for the Secretary of State is that Elida was herself an applicant in the claim advanced by her mother and there was an "initial decision" in relation to that application on 21 December 2000. Consequently, the Claimant cannot rely on Elida's later application. It is submitted on behalf of the Secretary of State that (1) that is the true meaning of the 2002 policy; in the alternative, (2) it is a meaning reasonably ascribed to it by the Secretary for State; or, in the further alternative, (3) in any event he has a residual discretion under the policy and he has exercised it lawfully in the interests of the integrity of immigration control.

1. The true construction of the 2002 policy

6. In their submissions on the true construction of the policy, Miss Harrison on behalf of the Claimant and Mr. Underwood QC on behalf of the Secretary of State each seek to draw support from the provisions of the Immigration Rules (HC395). The main provisions to which they refer are as follows:

"327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under [the Refugee Convention] for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.

329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under section 11 or section 12 of the Immigration and Asylum Act 1999, no action will be taken to require departure of the asylum applicant or his dependants from the United Kingdom.

349. A husband or wife or minor children accompanying a principal may be included in an application for asylum. If the principal applicant is granted asylum any such dependants will be granted leave to enter or remain for the same duration. The case of any dependant who claims asylum in his own right and would otherwise be refused leave to enter or remain will be considered individually in accordance with paragraph 334 above. If the dependant has a claim in his own right, it should be made at the earliest opportunity. Any failure to do so will be taken into account and may damage credibility if no reasonable explanation for it is given. Where the principal applicant is refused asylum and the dependant has previously been refused asylum in his own right, the dependant may be removed forthwith, notwithstanding any outstanding right of appeal that may be available to the principal applicant. At the same time that asylum is refused the applicant may be notified of removal directions or served with a notice of the Secretary of State's intention to deport him, as appropriate."

7. When the Claimant's wife applied for asylum, the statement which supported the application referred to "my asylum application" and asserted a fear of persecution in Kosovo "on account of my ethnic origin and perceived political opinions". She added that "we left because I had been threatened by the Police and I knew that I was not safe and I know that sooner or later myself and my children would be harmed". She stated that on an occasion when the Police came to the house, both she and the children were threatened and that they were frightened. However, the application contained no reference to the account upon which Elida now seeks to rely. When the Secretary of State refused the application which had been made by the Claimant's wife, he wrote to Elida (and her brother) under the heading "Refusal of a Dependant". The letter stated:

"you have applied for leave to remain in the United Kingdom as the dependant of [Mrs Gashi] who has claimed asylum on the grounds that she has a well-founded fear or persecution in Kosovo for reasons of race, religion, nationality, membership of a particular social group or political opinion.

In the light of all the evidence provided, the Secretary of State has concluded that [Mrs Gashi] does not qualify for asylum. As her dependants, your applications are accordingly refused under paragraph 349."

8. Miss Harrison submits that when the Claimamt's wife applied for asylum she did so solely on her own behalf and that the application in relation to the children was for them to be granted leave to enter or remain as ancillary to her refugee status. At that stage there was no asylum application on behalf of the children in their own right. Moreover, that is how the Secretary of State treated the case. In these circumstances, when one turns to the 2002 policy, it cannot be said that Elida, an unmarried minor child, was at that stage in the United Kingdom "as an asylum seeker prior to an initial decision" on her application.
9. The Acknowledgement of Service filed on behalf of the Secretary of State contended that the Claimant cannot seek to benefit from Elida's application for asylum in her own name because

"she was originally a dependant of her mother's asylum application, which has been refused, and in these circumstances the [Secretary of State] takes the view that an initial decision has therefore been made in her case. He is not prepared to extend the exercise of his policy to benefit those who lodge further asylum applications after such initial refusal. He considers this to be a deliberate attempt to circumvent the rules by asking a duplicate application."

10. Mr. Underwood submits that this approach is based upon the true construction of the policy and that it is firmly rooted in rule 349 because that expressly contemplates that minor children accompanying a principal may be included in "an application for asylum".
11. I do not doubt that, when considering what is the plain and natural meaning of the policy, it is appropriate to have regard to the Rules within which it operates. In my judgment, rule 349 contemplates two separate situations in relation to dependants. In the first, the dependant is "included" in the claim of the principal applicant and will obtain leave to enter or remain, but not refugee status, if the principal applicant is granted asylum. In the second, the dependant "claims asylum in his own right", whether at the same time as the claim of the principal applicant or subsequently. If successful, the dependant will acquire refugee status and not just a parasitic leave to remain. In this latter case, an unmarried minor child will be "in the United Kingdom….as an asylum seeker" until the Secretary of State has made an initial decision on the application. I take the view that, on the true construction of the 2002 policy, that was and is the position in the present case. Such a conclusion is supported by the purpose of the policy which is to be found in the principle of family unity, which, whilst it was not written into the Refugee Convention, found a place in the Final Act of the Conference that adopted the Convention in 1951. Moreover, the United Nations published criteria for the determination of refugee status provide (paragraph 186):

"The principle of the unity of the family does not only operate where all family members became refugees at the same time. It applies equally to cases where a family unit has been temporarily disrupted through the flight of one or more of its members."

12. On the true construction of the 2002 policy it is simply not right to say that an initial decision has been taken in Elida's asylum case (although it would have been, long ago, but for administrative error). Nor is it appropriate for the Secretary of State to seek to rely (as he does) on the language used in correspondence by the Claimant's solicitors as an aid to construction. The true meaning of the policy is to be founded in its own language, purpose and context.

2. A reasonable construction of the 2002 policy

13. Mr. Underwood's alternative submission is that even if the Secretary of State's construction of the 2002 policy is not the true construction, nevertheless it is his policy and his construction of it is a reasonable one. In R v. Secretary of State for the Home Department, ex parte Ozminnos [1994] Imm AR 287, Auld J held that it was a matter for the Secretary of State to construe his own policy and apply it, subject always to the power of the court to intervene on Wednesbury grounds. This approach was approved by the Court of Appeal in R v. Secretary of State for the Home Department, ex parte Gangadeen (ureported, 21 November 1997). Indeed, it has a longer pedigree in planning law: see, for example, Northavon DC v. Secretary of State for the Environment [1993] JPL 761 and R v. Derbyshire County Council ex parte Woods [1997] JPL 958.
14. Thus, if the true construction of the 2002 policy is as I have held, the question becomes: was the construction placed upon it by the Secretary of State nevertheless reasonably open to him? Mr. Underwood submits that it was and seeks to put it in this context in his skeleton argument:

"It was plainly the intention of Parliament, manifested in sections 73 to 77 of the Immigration and Asylum Act 1999, that all claims should be raised and dealt with together where possible. The Secretary of State is charged by Parliament with operating an immigration policy which is fair and efficient and it would be remarkable if he operated a policy which encouraged a 'drip-feed' of claims by dependants contrary to that intention. If applicants were entitled to remain here while each member of their family made serial asylum applications it would also undermine the Secretary of State's duty to implement the Dublin Convention."

15. I find it entirely understandable that the Secretary of State should have such matters in mind. However, the 2002 policy is itself a gloss on the Dublin Convention and, whereas it is appropriate for the Secretary of State to approach the construction of the policy with an eye on potential abuse, that does not entitle him to supplant the plain meaning of the policy with a preferred interpretation which is not a reasonable one. In my judgment, the interpretation relied upon by the Secretary of State was not reasonably open to him. It may be that it was conditioned by a caricaturing of Elida's application. To describe it as a "duplicate" application is less than fair. It bears no resemblance to the one in which she featured as her mother's dependant. Moreover, as it remains undetermined by the Secretary of State, it is inappropriate to attach the pejorative label "drip-feed" to it. It may or may not stand up to scrutiny. That is not for me to decide and I express no view upon it. In my judgment, however, it was not reasonably open to the Secretary of State to construe the 2002 policy in a way that classified the current presence of Elida in the United Kingdom as not being "prior to an initial decision" on her application.

3. Discretion under the policy

16. Mr. Underwood's final submission is that, if he fails on the first two construction issues and it was necessary for the Secretary of State to consider Elida as being "in the Uited Kingdom" as an asylum seeker "prior to an initial decision" on her claim, the 2002 policy nevertheless confers a discretion upon the Secretary of State to decline to consider the Claimant's case substantively. The policy states:

"The policy on the exercise of discretion in safe third country cases where family ties in the United Kingdom are claimed is that potential third country cases would normally have their asylum claims considered substantively in this country where…."

Mr. Underwood submits that it is a lawful exercise of that discretion, in the light of the concern about serial applications, for the Secretary of State to act in a manner which protects the integrity of immigration control.

17. The hole in the middle of this submission is that the Secretary of State has never exercised his discretion by reference to the policy, properly construed. He has never considered the Claimant's case on the basis that paragraph (c) of the policy applies and that "normally" that should lead to substantive consideration of the Claimant's application. If it is being suggested that any proper consideration of the Claimant's application would be bound to result in his removal to Italy with substantive consideration, I do not agree.

Conclusion

18. It follows from what I have said that the Claimant's application for judicial review succeeds. However, I admit to a feeling of unease about the form of relief just as I have sensed a degree of unreality throughout the case. The fact that this litigation endures in its present form derives from the continuing failure of the Secretary of State to proceed to an initial decision on Elida's application. It seems to me that any relief must take account of the Secretary of State's intentions in that regard. If the parties can agree the form of an order, there will be no need for counsel to attend when this judgment is handed down. If they cannot, I shall hear counsel.
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MR JUSTICE MAURICE KAY: There will be judgment in accordance with the document handed down. This application for judicial review succeeds.

MISS HARRISON: My Lord, I am most grateful for your judgment. Obviously the indications at the end of your judgment about the form of relief have been the subject of some exchange between myself and my learned friend, but there is no agreement as to how the court should proceed. Your Lordship should have had a short note with a draft order.

MR JUSTICE MAURICE KAY: Yes.

MISS HARRISON: As your Lordship will have anticipated, the difference between myself and my learned friend is as to whether your Lordship, having quashed the decision, should go on and make an order that the Secretary of State now withdraw the certificate under section 11 and give substantive consideration to the claimant's asylum claim. That is the crucial difference between us.

We say that your Lordship should take that further step, that there should be finality in this mitigation so that Mr Gashi is allowed, as the policy intends, to remain with his family in the United Kingdom. I do not know whether one of the matters that has caused your Lordship concern is the question of what would happen if the Secretary of State were to refuse Elida's claim. My Lord, it is not the case that once the case has been refused then the family member becomes liable to removal. If the policy exercised in your favour from the outset then you remain until the conclusion of your own claim. So a substantive benefit of the policy which we say, had it properly been applied, Mr Gashi would have benefited from, would be: once his claim is given substantive consideration, his stay in the United Kingdom is no longer, as it were, directly related to the position of his daughter. If she is refused, he still remains here.

The purpose of the policy is only to ensure that it is family members who have not had an initial decision, but once you are in that category then you remain here until the conclusion of your case.

MR JUSTICE MAURICE KAY: The one thing I should not try to do is to predict the outcome of Elida's --

MISS HARRISON: My Lord, certainly. We would not, obviously we do not act directly on her behalf, but we would not want some precipitative decision taken, in order, with respect, for the Secretary of State to gain some advantage in the context of this litigation, especially when there is an extremely long history of a five year period waiting for a resolution of the position.

It has to be said, on two occasions the claimant losing the benefit, either of the proper interpretation of the law, with the introduction of section 11 and the effective overturning of the House of Lords judgment in Adan and Aitseguer and, secondly, the change of policy. So he has had the goalposts moved twice.

We say that fairness does now require some finality to this litigation. In that context, I would just remind your Lordship, reading from the preamble to the Dublin Convention. The purpose of this convention is to ensure that measures are taken to:

"... avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications."

If that is the guiding policy of the Secretary of State, then surely this family have been waiting, certainly Mr Gashi, too long for what should be the outcome of his asylum claim.

My Lord, I would ask your Lordship to follow through the consequences of your judgment, which is to say that the family, on the proper interpretation of the law, benefit from the policy, and the consequence of that should be that Mr Gashi's claim for asylum should now be given substantive consideration in the United Kingdom. My Lord, those are my submissions.

MR JUSTICE MAURICE KAY: Thank you. Mr Underwood, have you a copy of Miss Harrison's draft order?

MR UNDERWOOD: Yes, thank you, I have just been given it.

MR JUSTICE MAURICE KAY: Where do you depart from it? Paragraph 1 okay?

MR UNDERWOOD: I do not have a numbered paragraph -- the order, yes. Certainly, it is paragraph 2.

MR JUSTICE MAURICE KAY: Paragraph 1 is okay. Paragraph 2, what do you want to do?

MR UNDERWOOD: My Lord, what we say is that the decision of 30th July should go, the Secretary of State should now reconsider the application to remain here, to have the asylum application dealt with substantively in accordance with the policy as your Lordship has construed it. What that leaves is the third submission, which I gave to your Lordship, and which you likened to a polo mint, which is to do with the exercise of discretion, because the proper construction of the policy gives the Secretary of State a discretion whether or not to take the case substantively.

As your Lordship found in paragraph 17 of the judgment, that simply has never been done. The discretion has not been exercised at all.

MR JUSTICE MAURICE KAY: So you are really relying on one of the ways in which you lost the case, are you, is that it?

MR UNDERWOOD: I am. There is a sentence at the end of paragraph 17 that I certainly would not quibble with:

"If it is being suggested that any proper consideration of the Claimant's application would be bound to result in his removal to Italy with substantive consideration, I do not agree."

And vice versa. One simply cannot say, at this stage, that any consideration, properly, of the claimant's position under the policy as construed by your Lordship -- it cannot be said that that would be bound to result in him being dealt with substantively here. The Secretary of State may take the view, for instance, that Elida's asylum claim, so called, is not an asylum claim at all. Or at least it is so weak an asylum claim it should not, in these circumstances, benefit this claimant.

There was some discussion of that in argument. Your Lordship will recall that there is no apparent category under the convention to which the asylum claim sits.

MR JUSTICE MAURICE KAY: It might be a human rights claim masquerading as an asylum claim. There was a sort of -- it fizzled out as an issue, did it not?

MR UNDERWOOD: It did.

MR JUSTICE MAURICE KAY: There was not a basis on which I could really make any decision on that.

MR UNDERWOOD: Yes. I apprehend, of course, my friend would argue that an asylum claim and a human rights claim would be the same for some purposes, but we disagree with that.

MR JUSTICE MAURICE KAY: Is the same, yes.

MR UNDERWOOD: That is a matter for the Secretary of State. Unless one is going to conclude that he is bound to say, on the proper application of this policy, that in the exercise of his discretion he must take this case substantively, then, in my submission, the furthest your Lordship needs to go is to say the letter of 30th July goes.

MR JUSTICE MAURICE KAY: In effect, you are saying I would be usurping the function of the Secretary of State if I went any further than paragraph 1?

MR UNDERWOOD: Precisely.

MR JUSTICE MAURICE KAY: Yes. Do you want to say anything else, Miss Harrison?

MISS HARRISON: My Lord, only to say this: that the terms of the policy are clear, when properly administered. Normally discretion will be exercised in your favour. Again we hear the Secretary of State reading into that policy some other, or proposing some other, caveats, which is dependant on the merits of your case, and it simply does not bear that kind of analysis.

The Secretary of State's policy is not to start to -- and my experience, and I apologise for giving evidence, is not that the Secretary of State goes behind the claim. Either there is a claim where there is no decision, or there is not. He has made a plain error of law on that question, and all that I could foresee from the proposals that my learned friend is making, is again an attempt to avoid the plain meaning of this policy, and to keep this family in intolerable limbo. We submit it would not be usurping the function of the Secretary of State, because his policy is absolutely clear. If you have a minor child --

MR JUSTICE MAURICE KAY: Yes, his policy is clear, but there is a discretion as to how he applies it, albeit subject to the word 'normally', I accept that.

MISS HARRISON: It creates a presumption, my Lord. But you have my submissions, we say that there is nothing that the Secretary of State has so far identified, such as some conduct on behalf of Elida or Mr Gashi, that would lead him to depart from his policy. That is the usual kind of context in which you get the Secretary of State departing.

But if your Lordship thinks that there is some substance in what my learned friend says, then I worry for the future and whether this is the end of the litigation. But, be that as it may, if they are not given substantive consideration we will have to consider the position. But I can only reiterate what I have said about where the interests of justice lie, and bring some finality to this position for Mr Gashi.

MR JUSTICE MAURICE KAY: Well, thank you. I am afraid I do take the view that this is a matter for the Secretary of State and not for me. So I shall limit the relief to that which is in paragraph 1. I apprehend there be no disagreement as to paragraph 4. So the order can reflect paragraphs 1 and 4, can it not?

MR UNDERWOOD: My Lord, it can. There is one other matter. I will ask your Lordship for permission to appeal.

MR JUSTICE MAURICE KAY: Yes.

MR UNDERWOOD: My Lord, I put my weight behind the second submission, the area for the Secretary of State to construe his own practices and policies. It is a matter which, of course, troubled this court, I think, now on three occasions. There is no Court of Appeal decision on this policy or practice, and the Secretary of State would welcome the opportunity to say to the Court of Appeal that his remit is rather wider than the first instance judges have so far taken the view. That is the basis of the application.

MR JUSTICE MAURICE KAY: Yes, it is unattractive in a sense, putting your weight on the second, because if you are accepting that you have no basis for an appeal on the true construction, in the circumstances of this case what you are seeking to do, once a true construction has been declared by the court, is to claim the right to depart from it.

The notion of the Secretary of State being free to interpret his own policy seems to me to have life until the court has said what the true meaning of the policy is.

MR UNDERWOOD: I think that is precisely the point on which the Secretary of State would differ. I appreciate, of course, your Lordship is following a long and distinguished line of first instance decisions on just that. But what we say is that certainly in the planning sphere, the Court of Appeal has taken a rather different approach.

MR JUSTICE MAURICE KAY: It seems to me that, not just in the asylum area, but wherever this argument crops up, the Secretary of State has been given as much rope as they are entitled to by the decisions that have been made. In a sense it is generous that they were given that. However, that is firmly established, the authorities are entirely consistent, are they not, including this one, but yet you just want to --

MR UNDERWOOD: The first instance decisions on this practice are consistent.

MR JUSTICE MAURICE KAY: Yes.

MR UNDERWOOD: What I am seeking to achieve is to -- or seeking to say -- is that the Court of Appeal's approach, certainly in the planning sphere, to the Secretary of State's practices, is more generous than the Secretary of State.

MR JUSTICE MAURICE KAY: Even after the court has declared the true meaning he can go on and say: I want to apply a different reasonably open --

MR UNDERWOOD: Yes, yes. We say, of course, that is not true of the statute, but it is true of the Secretary of State's own practices.

MR JUSTICE MAURICE KAY: Which planning decision says that?

MR UNDERWOOD: I am sorry to say I did not bring it with me.

MR JUSTICE MAURICE KAY: What level was that?

MR UNDERWOOD: That was Court of Appeal. I appreciate, again, it has been said, and Stanley Burnton J said it with some force when I was making the defence in the submission to him, the fact that cases could be said to be in a category of their own, the question is whether they are.

MR JUSTICE MAURICE KAY: Yes, certainly the asylum being asylum there are important factors that underwrite any policy in this area.

MR UNDERWOOD: I concede that, of course, but nonetheless, as I say, it is our primary --

MR JUSTICE MAURICE KAY: Could you tell me this: I noticed on the day when I was beginning to write this judgment, that Stanley Burnton J's case was being considered by the Court of Appeal, was it not, Nadarajah, was it?

MR UNDERWOOD: Yes.

MR JUSTICE MAURICE KAY: On which point?

MR UNDERWOOD: On every point. My friend and I were just discussing this. In fact we do not know, I have to say, quite what credence was given to that particular part of the case. I know that the Court of Appeal was much more concerned with the, as it were, post Ahmadi position on article 8. That was one of the minor issues.

MR JUSTICE MAURICE KAY: No, I am sorry, I have no enthusiasm for this. You will have to ask the Court of Appeal if you want to do it.

MR UNDERWOOD: Thank you very much.

MR JUSTICE MAURICE KAY: Thank you all very much indeed.