QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ABDULLAH ABDI HUSSEIN||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J P WAITE (instructed by THE TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"If your client successfully makes out a further claim to asylum in the Netherlands, Kifaaya Yuusuf may apply to join him there. In the event that your client is not considered to be a person genuinely in need of surrogate international protection, they may live together in their country of nationality.
"Any hardship experienced by your client and his partner would exist only until such time as your client's asylum claim in the Netherlands had been finally resolved."
"In all the circumstances, and having given the most careful consideration of all the matters raised on behalf of your client, the Secretary of State concludes that the allegation that your client's return to the Netherlands would breach his human rights under Article 8 of the ECHR is manifestly unfounded and he accordingly certifies to that effect pursuant to S.72(2(a) of the Immigration and Asylum Act 1999."
"My wife, Kifaaya Adan Yuusuf, gives me a great deal of support. We have been through traumatic experiences and have no immediate family to turn to except each other. We have no other friends or family in the UK so we have to look after each other. I completely depend on my wife for emotional support."
"It has been explained to me that this is an important development [referring to his wife's grant of humanitarian protection in around September 2003] in that whilst before my wife was simply an asylum seeker, she now has a form of longer legal status in the United Kingdom. I understand that it will be open to me to make an entry clearance application outside the immigration rules relying on Article 8 of the ECHR."
"As I have set out earlier, we have both suffered atrociously in the past and substantially depend on one another."
"My husband is the only person who knows what I have been through and he understands, supports and comforts me. I have no other family in the United Kingdom that I can turn to for emotional support. Before my husband joined me in the United Kingdom I felt very alone. If my husband was removed to the Netherlands, I do not feel that I could cope."
"Life is very difficult for me in this country and I depend on my husband for practical support in the United Kingdom. I speak no English and so rely on my husband for my day-to-day needs. If I were without him I would feel like a stranger among people I don't know or understand."
Then, after referring to concerns for her husband if he were removed to the Netherlands, she says at paragraph 10:
"As set out above, my husband and I are completely dependent on each other and we both have particular emotional needs. If my husband were removed to the Netherlands we would both suffer terribly."
She then asks the Secretary of State to consider the particular circumstances of her husband's case as "exceptional, compelling and compassionate".
"Your client has claimed asylum in this country, using an entirely different identity to that which he gave the Dutch authorities. It will be open to him on his return to the Netherlands to make a fresh claim for asylum based upon the identity, clan membership and account that he has given in this country and which he maintains is true. If his further claim for asylum is accepted as a fresh claim by the Dutch authorities then your client will be entitled to receive state benefits throughout the period that his fresh claim is being determined. In the Netherlands there is a network of various organisations through which your client will be able to access free legal advice and assistance to enable him to present his best case to the authorities and who will be able to advise him on all his available options."
"The Secretary of State has considered your client's case, however, on the alternative basis that his marriage is a "link" capable of consideration under 2(f). It is clear that the criteria in this sub-paragraph will only be engaged in exceptional circumstances. He is satisfied that such circumstances do not exist in this case. He accepts, for the purposes of these proceedings, that there is an emotional attachment between your client and his wife but does not consider that fact to be sufficiently exceptional to give rise to the exercise of discretion in your client's favour. It is an unfortunate fact that many who claim asylum in this country arrive in circumstances where they have been exposed to traumatic events in the past and are without a family when they arrive. He notes that your client's wife is in receipt of state support and therefore not entirely dependent upon your client for her material needs. He also takes into account your client's poor immigration history in reaching the conclusion that he should not benefit from paragraph 2(f) of the policy. He remains of the view that no reasonable Adjudicator could conclude that removal of your client would breach Article 8 of the ECHR."
"Unfortunately, I have to confirm your assumption that the Dutch Aliens Act does not have any provision for asylum seekers to seek to be joined by their partners. Inside the scope of the Dublin Agreement, partners may be united when the person whose asylum procedure in the Netherlands has not yet received a negative decision and when his partner is already in the Netherlands and has had no asylum procedure in one of the other member states of the Dublin Agreement. Given the fact that the asylum procedure of the client already failed, his partner having already lodged an asylum request in the United Kingdom, the Dutch asylum authority will not take any measure to unite those persons."
"Concerning your question about the position of failed asylum seekers in the Netherlands, I can give you the following information. Failed asylum seekers hardly have any rights in the Netherlands. They do not have the right of accommodation (they lose their accommodation 28 days after the final decision) and they also do not receive any financial support for accommodation or other basic facilities. Asylum seekers only have the right to work after they have been granted a resident permit. So during the procedure or after they failed in the procedure they do not have the right to work.
"I hope this information reaches you in time and will be helpful for your case."
In my view, there is nothing in this point either. The matter is, in fact, fully addressed in a number of paragraphs in the letter of 8th October 2003. One point made in that letter, as it seems to me, understandably, is that the claimant would be entitled to claim asylum in the Netherlands. That would seem to be right, given that he made a different asylum application there under a different name and, it may well be, propounding different circumstances. Therefore, it would be open for him, on return to the Netherlands, to make a fresh claim for asylum based on his fresh identity and whatever account he there now chooses to offer.
"Secondly, however, and to my mind more fundamentally, the Secretary of State submits that whether or not the appellant will qualify for entry clearance is presently immaterial: it should be decided not now but when he comes to apply. Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious Article 8 dimension to the case the ECO would refer the application to an immigration officer who undoubtedly has a discretion to admit someone outside the rules. And If entry were to be refused at that stage, then indeed a s59 right of appeal would certainly arise in which, by virtue of s65(3), (4) and (5), the Adjudicator would have jurisdiction to consider the appellant's human rights."
Then, at paragraph 17, Lord Justice Simon Brown went on to say this:
"In my judgment this second argument is unanswerable. It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply. The time presently being taken to process entry clearance applications in Germany is, we are told, something under a month. When granting permission to appeal Lord Justice Sedley said of this appellant's immigration history that 'few claimants come to court with a track record of such prolonged evasion and mendacity'. True it is, as Lord Justice Sedley also observed, that 'the protection of one's human rights is not a reward for virtue and the witholding or dilution of them is not a penalty for vice', but that is not to say that a person's immigration history is an irrelevant consideration when striking the balance between his Article 8 rights and the countervailing public interest in maintaining effective immigration control. To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system."
"In Shala exceptional circumstances were indeed established: had the applicant's asylum application been dealt with reasonably efficiently he would probably have obtained leave to remain as a Kosovan refugee and so would have been entitled to apply in-country for a variation of that leave on the grounds of his marriage. No such exceptional features exist here however."
Lord Justice Simon Brown went on to say:
"In short, I see nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain from the terms of his decision letter and the passages from Mr Taylor's statement to which I have already referred."