England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		25th September 2012

1. MR JUSTICE OUSELEY: The claimant (who shall be known by the initials "ABC") is a Sri Lankan national who entered the United Kingdom in June 2007 using his own Sri Lankan passport. He made a claim for asylum, which the Secretary of State rejected. He appealed against that decision and his appeal was dismissed, as was a subsequent application for reconsideration.
2. The decision of the AIT was dated 12th July 2007. In it it records the claim as being that although the appellant before the AIT had never personally been involved in politics, he was kidnapped for a few days and ransomed about four days later by his family. He suspected that this was the work either of the police, the army or the paramilitary who worked with an offshoot of the LTTE. The appellant was not ill-treated during that alleged abduction. The AIT rejected as not credible the core elements of the account, saying that it was so highly implausible as to be not credible. The immigration judge found that he was prepared intentionally to deceive in order to further his ambition to be allowed to stay in the United Kingdom. His wife and children remained in Sri Lanka.
3. There then followed, in the usual order and pace, endeavours to remove the claimant to Sri Lanka. He was detained in August 2011 on reporting and was interviewed with a view to the issue of travel documents by Tamil-speaking officials from the Sri Lankan High Commission. Directions were set for his removal on 28th September 2011. He made further representations, which were rejected in a letter dated 13th October 2011, and in proceedings that he brought by way of judicial review he contended, amongst other matters, that the Secretary of State might have, as had happened in a number of other Sri Lankan cases, disclosed a document to the High Commission revealing that he was a failed asylum seeker. The claim was refused in strong terms by Kenneth Parker J.
4. The application was renewed. The claimant sought the documents which had been provided by the Secretary of State to the Sri Lankan High Commission. The Secretary of State told the claimant that the documents included one known as IS33, but that document was not actually made available to the claimant until shortly before the hearing into the renewed application. The disclosure that IS33 had been one of the documents supplied was contained in the letter of 13th October 2011 from the UKBA to the claimant's then representatives.
5. The document itself was disclosed on the 30th January 2012. The renewal hearing on the following day, before His Honour Judge Anthony Thornton QC (sitting as a Deputy High Court judge), was then faced with a rather different case from the claimant as a result. This is because the form IS33 as disclosed, and it is essentially an internal document and in this particular case was prepared in July 2007, contains a number of questions, one of which is: "Asylum case?", beside which is written "YES/NO". Using the same format below that is the question "Appeal dismissed?" and the answer, "YES/NO". There is also a further question, "Right of Appeal before removal?", which also has "YES/NO" as the possible answers. On this form the answer "YES" had been ringed in response to each of those questions. It would have been perfectly obvious to the Sri Lankan High Commission that the individual who was to be interviewed for the purpose of issuing emergency travel documents, and a three month passport, had made and failed in an asylum claim in the United Kingdom.
6. By section 13 of the Immigration and Asylum Act 1999, provision is made for how the identity of a person to be removed or deported is to be proved. Subsection (3) provides:

"In providing identification data [for the purposes of issuing a travel document], the Secretary of State must not disclose whether the person concerned has made a claim for asylum."

7. It is, in my judgment, perfectly clear that the disclosure of an IS33 with the answers given as "YES" to the three questions to which I have referred is a breach of section 13. This has been accepted in one or two other cases by the Secretary of State where a similar error has been made. It was not seriously contended by Miss Olley for the Secretary of State that in this case section 13(3) had not been breached. I find that it was.
8. Returning to the hearing before His Honour Judge Thornton, the issue which he saw being raised, and which led to amended grounds of claim, related to the consequences of such a breach. The amended grounds, in paragraph 12 under the heading "What are the consequences of statutory breach?", lists six for which the claimant was to contend. The first group of grounds was that the UKBA could not remove the claimant on an emergency travel document obtained as a result of a prohibited disclosure, nor could removal directions be issued in such circumstances. The second group of grounds was that the prohibited disclosure gave rise to a fresh asylum claim because the avoidance of risk was the very purpose of the prohibition in section 13. It was also said as a third group of heads that the disclosure was a breach of Article 8.
9. Before me the argument has been refined on both sides, although it is not entirely clear to me that the refined arguments met each other, as opposed to passing each other side by side.
10. So far as the claimant's case is concerned, no challenge is pursued in relation to the original decision letter of 13th October 2011, nor did the claimant seriously seek to contend that the breach which I have found occurred had any effect other than in relation to a possible fresh asylum claim. Ms Jegarajah, on behalf of the claimant, did not contend that the effect of disclosure would be to prevent removal at all, requiring a grant of indefinite leave to remain.
11. A variety of arguments about the more serious consequences which had been attributed to a breach of section 13 had been addressed to Mr Philip Mott QC, sitting as a Deputy High Court Judge, in the case of Shanmuganathan v Secretary of State for the Home Department [2012] EWHC 1293 Admin Between paragraphs 15 and 23 he dealt with the question of whether there were any consequences as a result of prohibited disclosure beyond the question of whether there was the potential for a fresh claim. In particular, at paragraph 21 he rejected the submission made to him by Ms Jegarajah that a consequence of a breach of the statutory prohibition was to render subsequent acts automatically void or to prevent reliance upon the rejected claim as a basis for removal. That argument was not repeated before me. I agree with what Mr Mott had to say in rejecting it, in particular at paragraph 22. In my judgment, the statutory provision contains no statement as to the consequences of its breach. If the consequence of a breach, regardless of circumstance, were to lead to a conclusion that an individual could not be removed at all, it is a consequence which would, in my judgment, have required the clearest possible statutory language.
12. In that case also it was contended that there was a discretion to strike down removal directions issued in reliance on an emergency travel document obtained by deliberate and cynical disclosure. Again, the question of abuse of power which that would indicate is not necessarily one to be remedied, if it has no other consequences in respect of risk to the claimant, by awarding indefinite leave to remain to someone who has no other basis for it than that the government has acted deliberately contrary to a statutory provision.
13. In my judgment, it is clear what the consequences of a breach of this statutory prohibition are. The purpose of the statutory prohibition is to prevent a risk arising to a failed asylum seeker which would not otherwise arise. Obviously if the asylum seeker is successful, the issue does not arise, but it is plain that there are circumstances in which the disclosure to the country of nationality that the individual has made an asylum claim unsuccessfully may pose a risk to that individual on return, which non-disclosure of the failed claim would obviate. That is the purpose not merely of the UK legislation, but of other similar legislation both in the United States and in New Zealand to which Ms Jegarajah drew my attention. It is also clear that that is the purpose from the UNHCR guidance, paragraph 12.
14. Accordingly, the question that arises is whether the claimant, in the light of the disclosure, has made further representations which have been considered by the Secretary of State and are capable of amounting to a fresh claim.
15. It is here that the dislocation between the arguments of the claimant and defendant are most marked. The defendant submits that the only issue which is raised for consideration by the amended grounds is whether the disclosure has the consequence of preventing removal, which is not pursued, or of raising the risk which the claimant would face.
16. Miss Olley, for the Secretary of State, said that the amended grounds were not and should not be seen as making fresh representations to support a further asylum claim. The question simply was: did the disclosure have an impact on the risk which had hitherto been held not to exist? She said that in the circumstances of the case there was no increase in the risk.
17. Ms Jegarajah effectively submits that there was a fresh claim made which has not been answered, the claim was made in the amended grounds and that a court ought to hold that the Secretary of State was bound to treat this as a fresh claim, even if he dismissed it, so that there could be a right of appeal, to which Miss Olley responded that there was no point in requiring the Secretary of State to issue a letter because the only rational conclusion to which she could come on the facts was that there was no fresh claim.
18. It is my judgment that the amended grounds to which I have referred make it clear enough that the claimant is saying that the disclosure of the failed asylum claim in form IS33 amounts to a fresh claim and the representations in the grounds are to be treated as such. They have not been answered, and so the question arises as to whether either of the competing contentions about the inevitability of a fresh claim being accepted or the inevitability of its rejection should be accepted.
19. I have referred already to the findings of the immigration judge. It is clear that, even on the claimant's case, he has never suffered ill-treatment at the hands of the authorities, he has never engaged in politics, the abduction was rejected as a factual event, and in any event, even on the claimant's evidence, he was not able to identify whether it was the authorities or not who had been responsible for the abduction. There is no evidence that at the ETD interview any matters were raised which went to the substance of the asylum claim or to any activities by the claimant in Sri Lanka, and he never contended that he had, as I have said, been engaged in political activities in Sri Lanka. The fact that there were two Tamil interviewers, which is said to be unusual, does not make for a point of any significance. The claimant was able to leave Sri Lanka on his own passport. No details of the asylum claim or the claimant's background were disclosed beyond the fact that a claim had been made unsuccessfully and appealed unsuccessfully.
20. In the light of that, Miss Olley referred me to the decision of the AIT in TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 0049, heard by Carnwath LJ, Mr Ockelton and Senior Immigration Judge Storey. The Tribunal considered the array of risk factors that had been identified in LP and the question of whether it would be right to see some as background, as opposed to foreground, factors, if I can put it that way. It is perfectly clear that although that sort of language was seen as involving a risk that those which were not background might be elevated to de facto risk categories which they were not, the AIT recognised that there was a difference in significance between various of the 12 listed factors. One of those which was likely to be of rather lesser significance was having made an asylum claim abroad. Ms Jegarajah accepted that that particular factor should be seen as going beyond the mere fact of having made an asylum claim, but was more closely focused on the question of whether the country of nationality knew that an asylum claim had been made. The Tribunal considered this in a little more detail in paragraph 149. It said this:

"Like the Tribunal in LP we have no hesitation in accepting that the process for putative returnees applying for travel documentation (or replacement passports) from the Sri Lankan High Commission in London is likely to result in information regarding such persons being passed on to the authorities in Colombo. Indeed, at least in the context of returns by way of a charter flight, there would appear to be specific liaison between the UKBA, the BHC, ILM and the Sri Lankan authorities. Whether, however such information is treated by the Sri Lankan authorities as a cause for any particular interest appears even more doubtful now than before, in view of the evidence concerning the January 2009 charter flight return of thirteen failed asylum seekers. Given the likely fact they were known in advance by the Sri Lankan authorities at the airport to be failed asylum seekers, we regard it of some significance that there is no evidence whatsoever that any one of them met with difficulties. Professor Good posits that for individual returnees, the process would be quite different, but on our analysis of the recent evidence in recent media reports and the August 2009 FCO report, the evidence does not indicate that it would. We accept that the January 2009 return pre-dates the end of the conflict, but if anything it seems to us that at that (conflict-intensive) point in time scrutiny of returnees would have been higher than now. Given the importance the Tribunal in LP attached to BHC evidence that in the past, at least, lists of failed asylum seekers have been in the hands of Sri Lankan police conducting cordon and search operations in Colombo, we think it justified to retain this as a risk factor, but would regard it as likely now to be a relatively minor contributing factor at best."

21. Accordingly, Miss Olley submits that there is no basis for saying that there is a risk different from that which had existed before the disclosure was unlawfully made, and in any event says that if a letter is required, although it would be forthcoming, the only lawful conclusion in it would be that the claim must fail. Ms Jegarajah submits that at least to the extent of being a fresh claim, even if rejected the Secretary of State has to reach that conclusion.
22. In my judgment, Ms Jegarajah's submission is untenable. The court cannot conclude on the basis of the material before it that the Secretary of State would be acting unlawfully were the Secretary of State to reject this as capable of amounting to a fresh claim.
23. I do not accept Miss Olley's submission either that the case should be seen as not involving fresh representations seeking a conclusion on a fresh claim, because the amended grounds did that in this case.
24. I am reluctant to go as far as Miss Olley's submissions must go in relation to a fresh claim. Whilst I perceive the strength of her position, and conversely the weakness of the position in which the claimant finds himself, as a result of the rejection of his claim and the other factors to which I have referred, it is, in my judgment, for the Secretary of State in the first place to apply her mind to the issues and reach a view, rather than for the court to say what view the Secretary of State is bound in law to reach.
25. I would be reluctant also to hold that where an event of this sort occurs in breach of the statute, the Secretary of State is not obliged to consider the issues raised and whether her unlawful act has created a situation in which an asylum seeker faces a risk which he would not otherwise face, which might amount to a fresh claim. It is not right, in my judgment, for the court simply to say where something of this sort happens that it itself concludes that there is no increase in risk. The remedy for the breach, if representations are made, is for the Secretary of State to consider whether there is indeed a fresh claim.
26. Accordingly, I declare that the Secretary of State breached section 13 in providing IS33 to the Sri Lankan High Commission. I decline to hold that the Secretary of State would act unlawfully in not holding there to be a fresh claim, but I require the Secretary of State to deal with the claim raised in the amended grounds.
27. MS JEGARAJAH: My Lord, in those circumstances, and given that we did explain our case quite clearly to the Home Office some time ago, we do ask for our costs in this matter.
28. MR JUSTICE OUSELEY: Miss Olley?
29. MISS OLLEY: I do not feel I could be resisting those in any event, my Lord.
30. MR JUSTICE OUSELEY: No. There will be an order for the payment by the Secretary of State of the claimant's costs, to be assessed if not agreed. Are you legally aided?
31. MS JEGARAJAH: Yes.
32. MR JUSTICE OUSELEY: You will need an appropriate order as well, detailed assessment.
33. MS JEGARAJAH: Yes please. Thank you.
34. MR JUSTICE OUSELEY: Thank you very much.