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Zangana v. Secretary State Home Department [2002] ScotCS 326 (24 December 2002)

OUTER HOUSE, COURT OF SESSION

P733/02

OPINION OF LORD CARLOWAY

in the cause

JAZA ZANGANA

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for

Judicial Review of a decision of the respondent to certify the petitioner's allegations as manifestly unfounded and to issue directions for the removal the petitioner from the United Kingdom to

Germany

________________

Petitioner: Sutherland; Skene Edwards, W.S.

Respondent: Lindsay; H.F. Macdiarmid

(Solicitor for the Advocate General for Scotland)

24 December 2002

1. The Treaty, Legislative and Policy Background

In terms of the obligations undertaken by the United Kingdom government under the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmnd. 9171) as amended, political asylum in the United Kingdom is generally to be granted by the respondent, acting on behalf of that government, if returning the claimant to a country would involve a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. If, however, the respondent decides that an application for asylum should be refused then he is entitled to give directions for the claimant's removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (c. 33).

Section 15 of the 1999 Act prohibits the removal of a claimant before the respondent has decided his asylum claim. However, an important exception is provided under section 11(2) in the case of removals to European Union Member States. If the respondent certifies that such a Member State has accepted that, under "standing arrangements", it is the responsible state in relation to the claim for asylum then a removal can nevertheless proceed. But there is an exception to that exception. There can be no removal if the claimant has intimated an appeal under section 65 of the 1999 Act. Section 65 of the 1999 Act provides for an appeal to an adjudicator and beyond in respect of any decision by the Immigration Authority relating to a claimant's entitlement to remain in the United Kingdom where it is alleged that the Authority has acted in breach of the claimant's human rights, i.e. in contravention of section 6(1) of the Human Rights Act 1998 (c 42) (acting in a manner incompatible with the European Convention on Human Rights and Fundamental Freedoms). However, there is an even further exception to this. Section 72(2) removes the right of appeal if the respondent certifies that the allegation that the authority has acted in breach of the claimant's human rights is "manifestly unfounded".

The predecessor of section 11 of the 1999 Act was section 2 of the Asylum and Immigration Act 1996 (c 49). This permitted similar certification to that under section 11 in respect of a third country, but only if the respondent was satisfied that the third country would not send the claimant to another country in breach of the Geneva Convention. Section 11, in effect, eliminated the necessity for the respondent to be so satisfied in respect of Member States of the European Union. The "standing arrangements" mentioned in section 11(2) are those of the Convention determining the state responsible for examining applications for asylum lodged in one of the Member States of the European Community signed at Dublin on 15 June 1990 (The Dublin Convention). It states, inter alia, that the application of a claimant who has irregularly crossed a border into a Member State from a non-Member State should be examined by that Member State, rather than any subsequent Member State in which the claimant might find himself. The Member State thus having responsibility for determining the application is required to "take back" the claimant. However, any Member State, in which the claimant finds himself, may nevertheless determine his application, but only if the claimant agrees.

In terms of certain policy statements, the respondent exceptionally does not send a claimant to the Member State across whose border he first travelled. The first of these statements, a reply to a Parliamentary Question, dated 25 July 1990 (177 HC Official Reports (6^th series) written answers cols 262-3) states:

"In considering any individual case I shall take into account any evidence of substantial links with the United Kingdom which in my view would make it reasonable for the claim for asylum exceptionally to be considered here."

The second statement is in a Home Office letter dated 21 March 1991 (reproduced in Butterworths' Encyclopaedia of Immigration Law at para 2B[2]). This is in the following terms:

"Safe Third Country Cases: Substantial Consideration in UK Because of Family Links

We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where

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

(... 'in the United Kingdom' should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker.)

Discretion would need to be exercised according to the merits of the case where :

- the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependent on the relative in the United Kingdom and that there was an absence of similar support elsewhere. We would expect cases falling into this category to be rare...

We consider factors which might influence the exercise of discretion in these cases to be language skills (i.e. if the applicant is fluent in English but not in the language of the third country), cultural links or number of family members in the United Kingdom as opposed to numbers in other countries.

Cases citing family links which would not normally be considered and not displaying any of the features which engaged the exercise of discretion would definitely not be considered substantively. This means that a brother who was not in any way dependent on his sibling(s), would not have his case considered here, no matter how strong his cultural or linguistic links with the United Kingdom."

2. The Pleadings and Facts

The petitioner is aged 40. He is a national of Iraq of Kurdish origin. He left Iraq on 10 May 1998 and entered Turkey, where he remained for over a month. He then made his way to Germany, where he also remained for a while until arriving at Dover on 24 July 1998. He applied for political asylum but his case was certified under section 2 of the 1996 Act and he was sent back to Germany in early March 1999. The German authorities refused his claim and proposed to send him back to Iraq by the end of that month. Fearing the consequences of a return to Iraq, the petitioner found his way back to the United Kingdom, arriving on 21 March 1999. A further certificate under section 2 of the 1996 Act was issued on 27 April 1999 and subsequent directions were issued for the petitioner's removal, again back to Germany, on 10 May 1999. The certificate was challenged by way of an application for leave to apply for judicial review in the High Court of Justice in England [Pro 6/4].

Leave to apply for judicial review was only refused by the Court in England, almost three years later, on 17 January 2002. This followed the resolution of several test cases concerning Germany's application of the Geneva Convention, notably in connection with its recognition of the significance of persecution by "non-state" agents, particularly of Kosovan Albanians (see e.g. R v Secretary of State for the Home Department ex parte Gashi [1999] Imm AR 415). However, in addition to that part of the petitioner's case, he had also maintained in his written application that the respondent's decision had been unreasonable having regard to the respondent's failure to have any or adequate regard to the petitioner's close family ties in the United Kingdom and his medical condition. In relation to the family ties, reference was made to the petitioner's various brothers and sisters living in the United Kingdom (infra). The medical point was made under reference to the conclusions of a psychiatrist that the petitioner had signs and symptoms of severe depression and was in need of "as much family support as he can get".

Following upon the refusal of the application for leave, by Notice dated 21 June 2002 [Pro. 6/1], the respondent issued further directions for the removal of the petitioner, again to Germany, on 27 June 2002. Meantime, in November 2000, the petitioner's wife and three children had arrived in the United Kingdom. Their application for asylum was accepted as the United Kingdom's responsibility but was refused on 11 December 2000. An appeal against that refusal has still not been heard. The petitioner and his wife and family have been living together in Glasgow for some two years. The petitioner also has other family members living in the United Kingdom, namely : a sister, who has been granted British citizenship; two brothers, both having indefinite leave to remain; and a third brother, who has exceptional leave. It was not suggested that the petitioner had any connection with Germany.

By letter dated 18 June 2002 [Pro 7/1], the petitioner intimated an appeal under section 65 of the 1999 Act (although it was the 1988 Act which was referred to) against the respondent's decision to certify the petitioner's case, presumably being a reference to the certification under section 11(2). The grounds for the appeal were that the respondent's removal directions would be a breach of articles 3 (prohibition of torture), possibly article 2 (right to life) and article 8 (right to respect for private and family life) of the European Convention. The basis for the article 8 claim was that all members of the petitioner's immediate family lived in the United Kingdom and, as noted above, several members of his extended family also did so. It was said that the petitioner and his wife could not exercise their family rights standing the appeal of his wife and children. The interference with the petitioner's family rights was not proportionate.

The respondent's response to the appeal, which would otherwise have gone before an adjudicator, was to certify the petitioner's allegations under articles 3 and 8 as "manifestly unfounded" in terms of section 72(2) of the 1999 Act. The reasoning behind this decision was set out in a letter dated 19 June 2002 [Pro 6/2]. The terms of this letter must have been the object of only cursory checking prior to signature since they referred to the petitioner being sent back to Sri Lanka instead of Iraq ! This error was rectified in an amended print dated 20 June [Pro 6/3], but this time what had been a sentence stating that Germany consistently and conscientiously applied the European Convention was converted into a surprising statement that Iraq did so!

So far as the merits of the allegations were concerned, the respondent first dealt with the article 3 argument by recording that there was no prospect of the petitioner being sent back to any danger in Iraq by Germany, standing Germany's compliance with the European Convention. If the petitioner thought that Germany was going to breach any article then he could apply to the European Court of Human Rights and would be allowed to remain in Germany until then. However, the respondent also found that there was no risk at all of a breach under article 3 as Germany, like the United Kingdom, was not returning failed Iraqi asylum seekers to Iraq. Turning to the article 8 claim, it was noted that the issue of family ties had been raised in the English judicial review proceedings "which was refused ... following oral submissions from counsel".

The respondent referred to the policy guidance in the letter of 21 March 1991 but concluded:

"13. ...the Secretary of State does not believe that it would be appropriate for him to exercise his discretion to permit your client to remain in the UK to pursue a further claim for asylum - his asylum application in Germany having, on his own account, been refused."

Although recognising that his decision might involve some temporary interference with the petitioner's rights under article 8, the respondent considered that to be a proportionate and reasonable response justified by the need to:

"16. ... a) ensure the security and economic well being of this country by properly controlling, by means of the entry clearance system, those who enter the United Kingdom;

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

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

He continued:

"18. Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom then this would run contrary to the Secretary of State's duty to maintain a credible and effective immigration control to the United Kingdom. It would also be contrary to the spirit and purpose of the Dublin Convention, which is designed to ensure that it is the responsible Member state which considers an application for asylum and processes the claim."

The respondent explained that he considered that both the petitioner and his wife were aware that their potential rights of residence in the United Kingdom were precarious but that there were no insurmountable obstacles to them living together in the future. If his wife's appeal were successful, the petitioner could apply for entry clearance to rejoin her from Germany. If the petitioner were granted some form of status in Germany then his wife and children could join him there. The respondent concluded:

"23. Your client and his wife of their own volition, fragmented their family unity, having lived apart from each other for a period of over 2 years before she arrived in the United Kingdom. The Secretary of State's stated policy where family ties are claimed in potential third country cases has the aim, to maintain the unity of an existing family unit who, by dint of circumstances, find themselves fragmented. It was not intended to be, and should not be, a mechanism to facilitate the evasion of the proper enforcement of control of entry to this country. Nor should it allow persons such as your client to profit by their unlawful presence in this country to the detriment of others who go through due process."

3. Submissions

The petition for judicial review contained two complaints. First, it was said that the decision to issue the section 72 certificate was unlawful. This was because the petitioner fell within the policy exception referred to in the letter of 21 March 1991 in that his wife was in the United Kingdom, within the meaning of the policy. He also had three dependent children and a number of brothers and sisters in the country. Secondly, it said that the respondent's decision was unreasonable in that he had said that the issue of an article 8 breach was raised in the English review proceedings, yet the written application made no mention of it and the point was not canvassed in oral submissions. It was said that the petitioner had a legitimate expectation that his application would be considered in the United Kingdom, given that members of his family were here and none lived in Germany.

In the petitioner's submission, the errors in the decision letters could not simply be dismissed as typographical but indicated a lack of consideration. They suggested that the letters had just been run off a word processor having been adapted from a decision in another case. In giving substantive consideration to the article 8 argument, the respondent had failed to address the correct issue, namely whether the petitioner fell within the terms of the policy statements in all the circumstances. Although the section 65 letter had not mentioned these policy statements, the respondent had mentioned the policy in his decision letter and he was bound therefore to consider its content. Whether the United Kingdom might be in breach of article 8 was not directly relevant to the issue. Even if there was no potential breach of article 8, the respondent still had to consider whether the petitioner fell within the policy. In looking at the circumstances, the case had to be considered upon its own merits bearing in mind that all asylum seekers were likely to have been in breach of one or more immigration controls and the petitioner's case was no different in that regard. The content of paragraph 18 of the decision letter was therefore not justifiable.

The respondent had failed to give separate consideration to the merits of the petitioner's case based upon the terms of the policy in light of the petitioner's family connections and the references to his depression as contained in the application in the English proceedings. There had been no decision on the question of the petitioner's dependency on other members of his family based upon that depression. The references to dependency and support in the policy documents had to be given a common language meaning and were wide enough to include emotional dependency and support. For similar reasons, the content of paragraph 23 of the decision letter was irrelevant. The policy documents did not set out the aim of the policy and there was no reason to suppose that the wording of the policy should not be adhered to and applied to those who used it to facilitate evasion of immigration controls, at least where there had been no prior deliberate effort to create or engineer a situation which would be within the policy. The petitioner's wife having entered the country, there was no reason why the respondent should be barred from considering the petitioner's case in light of the policy. If the respondent was saying that all cases of the petitioner's type must be refused then he was fettering his discretion and failing to treat each case on its merits. Accordingly, the petitioner's first and second pleas-in-law, which attacked the lawfulness and reasonableness of the decisions to issue the certificate and issue directions for the petitioner's removal, ought to be sustained and these decisions reduced.

The respondent countered by moving that his third plea-in-law, which maintained that the decisions were both lawful and reasonable, be sustained and the prayer of the petition refused. First, in relation to policy, it was not enough that the court might consider the respondent's decisions harsh since he had a discretion within the terms of the policy. The exercise of that discretion could only be interfered with by the court if it was shown to have been unreasonable or unlawful. Secondly, the respondent was not, of course, returning the petitioner to Iraq but only to Germany, where an asylum application could be made and from where, in any event, the petitioner would not be sent to Iraq. Thirdly, the family could be re-united in the event of the petitioner's wife's claim being successful here. The policy predated the coming into force of the Dublin Convention and ought to be construed upon that basis.

The decision letter had to be looked at upon this basis the it was a response to an application which claimed that the respondent's actings were in breach of articles 3 and 8. The respondent was not a "soothsayer" and could not be expected to deal with points not raised in that letter. In particular, there was no reference to medical reports, illness or dependency upon relatives. The decision was in accordance with the policy statements and recognised that the policy was not a rigid one but allowed the respondent a discretion which had been legitimately exercised against the petitioner. The reason why the merits of the article 8 point had been considered was because that is what the section 65 letter had raised. The respondent considered that any interference was justified and proportionate and had been entitled to do so. The reference in paragraph 18 was to the fact that this was the petitioner's second application for asylum. The absence of references to illness and dependency was because these were not raised in the section 65 letter. The references to the history of the petitioner's recent family life were part of the respondent's consideration of whether his potential interference with the petitioner's rights was proportionate and justified. The references in paragraph 23 to the policy were valid since the policy was clearly not intended to permit avoidance of immigration controls. The decision was accordingly both lawful and reasonable.

4. Decision

The errors in the decision letters are unfortunate and certainly display a degree of carelessness at the stage of checking the content. However, given the likely volume of decisions generally, some based upon the same or similar grounds, it is not unreasonable to use word processing packages to cut and paste appropriate passages of reasoning in decision letters provided that the ultimate result accurately reflects the actual decision made and the reasoning for it. It is perhaps inevitable that errors will from time to time occur when using this method and, no doubt, in a given case, a substantial error may be fatal to the decision making process. In this case, however, the errors were patently of the type which, prior to word processing, might reasonably have come under the category of typographical. They did not effect the substance of the decision and would not have left the reader in any doubt about what the decision had been or the reasons for it.

The consideration of the merits of the arguments under articles 3 and 8 of the European Convention was prompted by the content of the petitioner's own letter seeking to appeal under section 65. The respondent was entitled to consider that letter and look at the merits of the arguments in order to form a view on : (a) whether he was acting in contravention of the European Convention; and (b) if not, whether he should permit an appeal to proceed or issue a section 72(2) certificate. His determination, therefore, that there was no breach of article 3, since Germany was not returning failed Kurdish asylum seekers to Iraq, or of article 8, since the petitioner could rejoin his family in the United Kingdom or his family could join him in Germany in the event of success by either the petitioner or his wife in their asylum applications, was a relevant one. The substantive merits of these decisions were not themselves challenged at the stage of the judicial review hearing. Having reached a view upon them, the respondent was also entitled to conclude that the allegations of breach of the articles were "manifestly unfounded" and to issue the section 72(2) certificate.

Although he did determine the allegations relative to articles 3 and 8 contained in the petitioner's letter, the respondent did not simply stop there. The respondent did consider the petitioner's particular situation in light of the policy setting out the circumstances in which he might determine an asylum application himself rather than refer it to a third country or Member State in terms of the Dublin Convention. In particular, although the petitioner had not specifically referred to the policy, the respondent considered whether the petitioner did fall within its terms as detailed in the 1991 letter. Of course, the terms of the 1991 letter expressly recognise the existence of a substantial area of discretion vested in the respondent in making a decision upon whether to make an exception. The respondent is not bound to consider an applicant's claim just because he might fall within the categories mentioned in the 1991 letter. On the other hand, no doubt if an applicant did fall plainly into one of the categories said to merit consideration in the United Kingdom, the respondent would be bound to provide adequate reasons for any departure from the policy said to be generally applicable to a person in that category. The respondent has provided adequate reasons for acting as he did in the petitioner's case.

The petitioner's position, as alluded to in paragraph 18 of the respondent's decision letter, was not simply that he had arrived in the United Kingdom as an asylum seeker having succeeded in circumventing some rule or practice of immigration control. No doubt many, but certainly by no means all, asylum seekers have so succeeded and the respondent could hardly be excluding them from the category of persons whose claims might be decided by him in the United Kingdom in terms of the policy. Rather, on his own version of events, the petitioner's position was that of a person whose asylum claim had already been decided in accordance with the rules and procedures agreed under the Dublin Convention, namely by Germany. He was not an ordinary asylum claimant arriving in the United Kingdom with the expectation that his claim would be adjudicated upon in the United Kingdom, but a person whose claim had actually been rejected after "due process". This was a factor of substantial significance and one which the respondent was entitled to take account of, as he clearly did, in determining that he should not decide the case in the United Kingdom. Indeed, had he done otherwise then there was the potential for there to have been two decisions on the petitioner's asylum claim in two different European Union states, a situation which, as the respondent observed, would be contrary to the spirit and purpose of the Dublin Convention.

In considering the policy, it is correct to say that it does state that normally a claimant's case will be decided in the United Kingdom where that claimant's spouse is also in the country, including where the spouse is an asylum claimant. However, the statement of policy is concerned primarily with the situation existing when the claim for asylum is first made, or at least when it is first determined. Thus, where a claimant's spouse has already made a claim and, as the policy states, has been given temporary admission as an asylum seeker then it is sensible that both claims be dealt with in the same jurisdiction. However, the situation here was quite different. By the time of the petitioner's wife arrival in the United Kingdom, the petitioner's claim for political asylum had already been rejected by Germany. By the time of the respondent's consideration of the petitioner's appeal under section 65, his wife's claim had been rejected. In this general context, the respondent's reasoning in paragraph 23 of his decision letter cannot be faulted as illegitimate or unreasonable. The petitioner's position was far removed from the type of situation which the policy was intended to address. It may be the case that the petitioner's immediate family circumstances, in the sense of his wife and children as distinct from his brothers and sisters, were not addressed in the English judicial review process. However, it is also the case that by the time that process was resolved against the petitioner, his wife and children had been in the United Kingdom for some time. If their presence was considered significant to any decision of the respondent, then the respondent was at least entitled to remark that it had not been successfully presented in that process. In any event, the respondent was entitled to, and did, have regard to the petitioner's particular circumstances. These were markedly different from those envisaged in the policy. In terms of the Dublin Convention not only was Germany the responsible country in respect of asylum applications, it had already made a decision upon the asylum issue.

In relation to the petitioner's health, it is not immediately obvious that the policy's use of the words "dependent" and "support" is intended to include emotional dependency or support of the type narrated in the application to the English courts. In that regard, it is perhaps difficult to perceive of the petitioner's mental health problems as putting him in a position of being "wholly or mainly dependent on" a relative in the United Kingdom. But in any event, the important point to note is that the petitioner's letter made no mention of any continuing mental health difficulties which might have put him into the category outlined in the policy. In that situation, there was no obligation upon the respondent to commence enquiries into any such difficulties or to suppose that they were continuing.

For these reasons, I will repel the petitioner's first and second pleas-in-law, sustain the respondent's third plea-in-law and refuse the prayer of the petition as contained in the third statement.