Scottish Court of Session Decisions

Ibrahim v. the Secretary of State for the Home Department for Judicial Review [2002] ScotCS 88 (20th March, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD CARLOWAY in the cause CELIL ALI IBRAHIM Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the respondent to remove the petitioner from the United Kingdom   ________________

 

 

Petitioner: Devlin; Skene Edwards WS

Respondent: A.J. Carmichael ; H.F. Macdiarmid (Solicitor for the Advocate General for Scotland)

20 March 2002

1. The Legislative and Treaty Background
2. The respondent promulgates Rules as to the practice to be followed for regulating the entry into and stay in the United Kingdom of persons, such as foreign nationals, required by statute to have leave to enter. The respondent's Rules regulate the applications of those claiming political asylum in terms of the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmnd. 9171) as amended by the Protocol made at New York in 1967 (Cmnd. 3906). The Rules include provision whereby asylum will be granted to a claimant in the United Kingdom if returning him to a country in breach of the Convention and Protocol 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 the appropriate criteria are not met then the application for asylum could be refused and the respondent would be 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). The 1999 Act provides :

"15 During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom...

11(2) Nothing in section 15 prevents a person who has made a claim for asylum ("the claimant") from being removed from the United Kingdom to a [European Community] member state if -

(a) the Secretary of State has certified that -

1. the member state has accepted that, under standing arrangements, it is the responsible state in relation to the claimant's claim for asylum; and
2. in his opinion, the claimant is not a national or citizen of the member state to which he is to be sent;

(b) the certificate has not been set aside on an appeal under section 65".

There is also an appeal under section 71(2) against the issue of a certificate on the ground that the conditions applicable to it were or are not satisfied.

3. The "standing arrangements" mentioned in the Act 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^th June 1990 (The Dublin Convention). It provides :

"Article 3

1 Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.

2 That application shall be examined by a single member state, which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear...

5 Any member state shall retain the right...to send an applicant for asylum to a third state, in compliance with the provisions of [the refugee convention]

Article 5...

2 Where the applicant for asylum is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum...".

 

4. The Pleadings and Facts
5. The petitioner maintained that he was a national of Turkey who had gone to the Lebanon with his wife and family and had a well-founded fear of persecution in Turkey. In the Lebanon he had contacted an "agent" with a view to securing travel to a country where he might claim asylum. The agent secured what the petitioner described as a "purported" travel visa bearing to have been issued by the Italian Consulate in Beirut and valid for thirty days from 26 December 2000. The petitioner averred that he had entered the European Community on 20 January 2001 through Greece, to Belgium and into Germany, where he secured an extension to the visa until 3 February 2001. On 10 February, he entered the United Kingdom where, for the first time, he claimed asylum. He averred that he had never entered Italy at all.
6. It was not disputed that the petitioner carried a Lebanese Passport in the name Jalal Ali Ibrahim issued at Beirut on 23 November 2000. A photocopy only of this was produced (No. 7/6 of process). It specified the petitioner's place of birth as Tripoli and contained his photograph. Upon the passport was stamped a Shengen Agreement tourist visa said to have emanated from the Italian Consulate with an extension stamped at Bremen. From his interview with immigration officials on arrival in the United Kingdom, a transcript of which was produced by the petitioner at the hearing, it seems he had always intended to seek asylum in the United Kingdom and had travelled by air to Greece and then Belgium, where he had intended to board a Eurostar train to England. However, for some reason he was not permitted to board the train and went to stay with relatives of a friend for a few days in Germany before journeying to England, again by air. At interview he said that his passport was "forged". In an earlier passage he had referred to a general ability to obtain passports in Lebanon by bribery. Inquiries were made by the respondent to determine whether the passport and/or visa had been forged and it was determined that they had not been. Rather, they had been duly issued by the relevant authorities.
7. It was also not disputed that initially the respondent requested Germany to take responsibility for determining the asylum application in terms of article 5.4 of the Dublin Convention (Pro. 7/1). Germany replied that, on the facts, Italy was responsible (Pro. 7/2). A similar request was made of Italy by the respondent (Pro. 7/3). The Italian Ministero dell' Interno in Rome replied :

"According to article 5.4, Italy accepts the transfer of [the petitioner and his family] for determination of their asylum application."

By letter dated 5 June 2001 (Pro. 7/5), the respondent wrote to the petitioner informing him that Italy had accepted responsibility and that the respondent :

"certifies, that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act are satisfied, namely that :

- the authorities in Italy have accepted that, under standing arrangements, Italy is the responsible state in relation to your claim for asylum; and

- you are not a national or citizen of Italy."

The petitioner's right to appeal, from outwith the United Kingdom, under section 71(2) of the 1999 Act was set out in this letter. The petitioner did not appeal but raised this petition for judicial review based upon the contention that the visa was not a valid one and that therefore he ought not to be sent to the country which purported to have issued it.

8. Submissions

(a) PETITIONER

9. The essential contention in the petition was that the respondent's decision was unreasonable since it was based upon an erroneous belief that the visa was valid. The petitioner had a "legitimate expectation" that his application would be dealt with in accordance with articles 4 to 8 of the Dublin Convention. Had it been so determined, the petitioner ought not to be removed to Italy because he did not have a valid (my emphasis) visa issued by Italy nor had he been in Italy.
10. In developing the argument set out on the petition, counsel advanced four propositions. First, he submitted that the ratification of the Dublin Convention could give rise to a legitimate expectation that the respondent would act in accordance with the treaty obligations undertaken therein unless there were statutory or policy indicators to the contrary (see the Australian High Court case of Ministry of State for Immigration and Ethnic Affairs v Teoh (1995) 183 Comm LR 273, Mason CJ and Deane J at paragraphs 34, 36 and 37 and Toohey J at paragraph 32; R v Secretary of State for the Home Department ex parte Ahmed and Patel [1998] INLR 570, Lord Woolf MR at 583; Hilaire v Baptiste [1999] UKPC 13 (17^th March 1999) the majority at paras 34-37, the minority at 58; cf R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696, Lord Bridge of Harwich at 748, Lord Ackner at 761-2). The expectation in this case was not in respect of any substantive determination of the asylum application on its merits but was procedural to the effect that the respondent ought to consider the petitioner's contention relative to the validity of his visa. Because the respondent retained a residual discretion on whether to order the petitioner's transfer under the Dublin Convention, that consideration should take place even although the contention did not emerge until after the decision had been taken. Secondly, counsel submitted that there were no statutory or policy indicators to the effect that the terms of the Convention should not be followed. Thirdly, counsel submitted that given the terms of section 11 of the 1999 Act, the Convention had now been incorporated into domestic law (Macdonald's Immigration Law and Practice (5^th ed.) para 12.149) and the English cases pre-dating the Act (R v Secretary of State for the Home Department ex parte Akhbari [2000] Imm AR 165, Hooper J at 168; R v Secretary of State for the Home Department ex parte Behluli [1998] INLR 594, Beldam LJ at 599-600) should not now be followed. This was because the pre-existing legislation (The Asylum and Immigration Act 1996) made no reference to the Dublin Convention whereas, under reference to "standing arrangements" the 1999 Act did. Fourthly, it was said that the Dublin Convention was distinguishable from other treaties found unenforceable in domestic law. The reasoning of Lord Phillips MR in Zequiri v Secretary of State for the Home Department [2001] EWCA Civ 342 (12 March 2001) (para. 49) was no longer applicable given the change in the legislation (see also Collins J in R v Secretary of State for the Home Department ex parte Ahmed Shah [2001] Imm AR 419 at 427-8). Cases which did not involve individuals, such as Rayner v Department of Trade (the "International Tin Council Case") [1990] 2 AC 418, were also distinguishable for that reason. The Dublin Convention affected the status of persons and was in a different position and could support a legitimate expectation.
11. In anticipation of the respondent's argument relative to the conclusive nature of the certificate, counsel maintained that Ibrahim v R v Secretary of State for the Home Department [2001] Imm AR 430 and R v Secretary of State for the Home Department ex parte Hatim [2001] Imm AR 688 were irrelevant since the petitioner did not challenge the content of the certificate itself. Counsel went on to submit that three matters had to be looked at in a legitimate expectation case. The first was to determine what the Government had committed itself to, the second was whether it had breached that commitment and the third was what the Court might do about it (R v London Borough of Newham [2001] EWCA Civ 607 (26 April 2001) at para 19). Under somewhat oblique references to dicta in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, counsel sought to characterise a failure to meet a legitimate expectation as an "abuse of power" and not simply "unreasonable" in the so-called "Wednesbury" sense (cf McPhee v North Lanarkshire Council 1998 SLT 1317). That abuse was that although it was accepted that the visa was ex facie valid, the challenge to its validity ought to have been investigated by the respondent (cf R v Secretary of State for the Home Department ex parte Ahmed Shah (supra)). "Valid" in the treaty had to be given its ordinary meaning (Vienna Convention on the Law of Treaties (Cmnd. 7964) article 31.1). If that were done, it could not be interpreted as meaning "ex facie valid". Reference was made to the necessary proofs in articles 23 and 24 of Guidance provided to member states by the Decision No 1/97 of 9 September 1997 of the Committee set up under the Dublin Convention concerning its implementation (European Union Official Journal L 281). The petitioner ought to have been given a hearing on this point and had not been.

(b) RESPONDENT

12. Counsel advanced three propositions. First, the case was one in which the respondent had issued a certificate under section 11(2) of the 1999 Act. That was not challenged and therefore the respondent was entitled to order the petitioner's removal. Once the matters of fact stated in the certificate were accepted that was an end of the matter (R v Secretary of State for the Home Department ex parte Hatim (supra); Ibrahim v Secretary of State for the Home Department (supra)). Secondly, in order to set up any case based on legitimate expectation, the petitioner would have to be in a position to satisfy the Court that his visa was not valid. However, the petitioner accepts that it is ex facie valid and the petitioner had pointed to no material to undermine that validity. The approach of Collins J in R v Secretary of State for the Home Department ex parte Ahmed Shah (supra at paras 31-33) was correct. This approach found support in the type of material mentioned in the Guidance provided by the Dublin Convention Committee (supra). In that regard article 23 stressed the need to determine applications on the basis of as few requirements of proof as possible. Article 24 provided that evidence in "List A", which included "valid visas", was to be regarded as probative unless rebutted. Valid meant simply that the visa was duly issued by the relevant member state authority and was not a forgery. Furthermore, the respondent was entitled to proceed on the basis of Italy's acceptance of its responsibilities in terms of its issue of the visa (R v Secretary of State for the Home Department ex parte Ganidagli [2001] Imm AR 202, Owen J at paras 24-25).
13. Thirdly, counsel submitted that no legitimate expectation could arise by reason of the ratification of the Dublin Convention (R v Secretary of State for the Home Department ex parte Behluli (supra) Beldam LJ at 601 quoting Lord Oliver of Aylmerton in the International Tin Council Case (supra) at 500). This latter case also concerned individual rights and could not be distinguished on that basis. The case of Ministry of State for Immigration and Ethnic Affairs v Teoh (supra) was correctly criticised as deviating from formerly accepted principles relative to international treaties in the article by Michael Taggart (1996 112 LQR 50). Only the minority in Hilaire v Baptiste (supra) had accepted the applicability of legitimate expectation arising from a treaty and Lord Woolf MR's remarks in R v Secretary of State for the Home Department ex parte Ahmed and Patel (supra) were obiter. Although the petitioner had sought to suggest that the Dublin Convention affected status, in fact it contained purely administrative arrangements. Indeed, in relation to any expectations, it was difficult to see just where it could be said that the Convention imposed any obligation on the transferring, as distinct from the receiving, state. The reasoning which rejected the Convention as giving rise to expectations in the pre 1999 Act cases was equally applicable to cases under that Act (see R v Secretary of State for the Home Department ex parte Ahmed Shah (supra) Collins J at paras. 17 and 18). In short, there had been no "abuse of power" or unreasonableness in this case and the remedies sought in the petition should be refused or the petition dismissed.

4. Decision

14. Although I was not referred to any of the Scottish cases on the subject, it is well established that the mere ratification of an international treaty does not result in the incorporation of the terms of that treaty into domestic law. In that regard, such ratification cannot create substantive rights or obligations on the part of persons not being parties to that treaty (see generally Lord Ackner in R v Secretary of State for the Home Department ex parte Brind (supra) at 761-2 quoting Lord Oliver in the International Tin Case (supra) at 500). In a case which does not involve any United Kingdom Government department or agency, it would be difficult to argue that the terms of such a treaty could have any bearing at all on the law to be applied. However, it was not argued that any rights or obligations were created by ratification, merely that, at least in certain circumstances, a legitimate expectation might arise whereby an individual might expect a Government department or agency to act in accordance with that Government's treaty obligations. In that respect the expectation being argued for was simply one relating to the fairness and appropriateness of procedures to be adopted in dealing with a particular case and not with the substantive merits of that case.
15. As a generality, on the question of legitimate expectation in that context, I agree with the joint reasoning of Mason CJ and Deane J in the case of Ministry of State for Immigration and Ethnic Affairs v Teoh (supra at paragraphs 25 to 37) and with the view of Lord Woolf MR in R v Secretary of State for the Home Department ex parte Ahmed and Patel (supra at 584) that such an expectation may be created as a result of the Government's ratification of a treaty at least if further steps are taken by the Government to implement the terms of that treaty as a matter of stated policy or accepted practice when dealing with questions affecting individuals. This is also the view which I understand the majority (Lords Browne-Wilkinson, Steyn and Millett) and the minority (Lords Goff of Chieveley and Lord Hobhouse of Woodborough) reached in Hilaire v Baptiste (supra paras 34-36 and para 58 respectively). I do not consider that the dicta in that case or of Mason CJ, Deane J or Lord Woolf MR contradict those of Lords Ackner and Oliver (supra) when seen in context (cf Beldam LJ in R v Secretary of State for the Home Department ex parte Behluli (supra at 599-600)).
16. Where there is a case against a Government department or agency, the fact that the same Government has not only ratified an international treaty, but has also taken steps to implement its terms in a domestic context cannot be regarded as something without moment. Even although there has been no formal incorporation of the treaty by legislation, the steps taken following upon ratification may give rise to a legitimate expectation in a person that the principles agreed in the treaty will be considered when a decision affecting him is being made by that Government. One of these circumstances will be where, as here, domestic legislation expressly refers to the Government's "standing arrangements" between nations and these arrangements are in fact contained in an international treaty. The arrangements may not bind the relevant department or agency in all situations in the same way as rules of law. They may also be capable of change by the department or agency without reference to the Legislature. But that is not to say that they can be ignored by that department or agency when considering a particular case.
17. I do not consider that such an approach involves the incorporation of treaty provisions by the back door. The adoption of the treaty provisions as the "standing arrangements" referred to in the legislation ought at least to be regarded as a statement of Government policy and, seen in that context, the terms of that policy can create a legitimate expectation relative to the procedures to be followed. Of course, matters would be entirely different if there was legislation contradicting these arrangements. In that event, the legislation would prevail but that is not the position here. Indeed, although the respondent sought to argue that the Dublin Convention created no legitimate expectation, it was not disputed that, in fact, he was purporting to act throughout in terms of that Convention and in his dealings with the petitioner. In his letter to the petitioner dated 5 June 2001 (Pro. 7/5), the respondent stated that he was acting under its provisions. In these circumstances, I accept that the petitioner was entitled to expect that the respondent would abide by the procedural or administrative steps stipulated in the Convention or, if he intended to depart from them, would justify any alternative steps satisfactorily. The respondent did not seek to justify any such departure in this case.
18. I should add for completeness that whilst I do not accept that the Dublin Convention has been formally incorporated into domestic law, the effective reference to it in the 1999 Act puts it into a different situation to that when it was looked at in the context of the earlier legislation in Zequiri v Secretary of State for the Home Department (supra); R v Secretary of State for the Home Department ex parte Ahmed Shah (supra); and R v Secretary of State for the Home Department ex parte Akhbari (supra).
19. However, the fact that the references to the Convention created this legitimate expectation does not take the petitioner any distance in this particular case because the respondent, not only purported to act in terms of the Convention, but did act in conformity with its terms. These terms provide by Article 5 that where the applicant for asylum is in possession of a valid visa then it is the member state which issued that visa that is responsible for examining the application. There was no dispute in this case that the visa possessed by the petitioner was not forged. It was issued by the Italian consulate in Beirut. Such a visa is "valid" at least until the relevant issuing department disowns it. In this regard, I do not accept that a claimant can successfully maintain that a visa, which he obtained and relied upon to enter the European Union, was invalid simply by asserting that there might have been some unspecified misrepresentation made during the application process. Indeed, in this case the petitioner was unable to assert that any particular misrepresentation had been made, far less that it was material. The respondent examined the visa and determined that it was not forged. The Italian authorities accepted the visa's validity and that is of considerable significance (see the approach of Owen J in R v Secretary of State for the Home Department ex parte Ganidagli (supra) at para 25). In these circumstances, the respondent was and is entitled to treat the visa as valid and to proceed to certification under section 11(2) of the Act with the consequence that removal is not barred by section 15. In this area of validity, I agree broadly with the obiter remarks Collins J in R v Secretary of State for the Home Department ex parte Ahmed Shah (supra at paras 31-33). As he observed, and as is also reflected in the approach taken in the Committee's Guidance (supra):

"the purpose of the Convention is to ensure that there is a speedy determination as to which country is to be responsible. If it were necessary to go into the whys and wherefores in relation to the circumstances in which a visa had been obtained, that would serve to defeat one of the objects, indeed the main object, of the Dublin Convention. The whole point is that investigations and delay should be kept to a minimum. Of course, the British authorities would have to ascertain from the [purported visa issuing] authorities whether they accepted that the visa was a valid one. Once they did, there was no need to go further to investigate the circumstances in which it had been obtained."

20. It follows from all of this that I am satisfied not only that the respondent acted reasonably in determining the matter in terms of the Convention when he did, but also that he is acting reasonably in maintaining that determination in the absence of any substantive material challenge to the visa's validity. The remedies sought in paragraph 3 of the petition must accordingly be refused. I should add that, had I been satisfied that the respondent had not acted in accordance with the Dublin Convention, I would not have thought that the issue of a certificate by him under section 11(2)(a) would have barred a challenge to his directions for removal where that challenge did not seek to dispute the merits of the matters certified. In that respect I would have thought Ibrahim v Secretary of State for the Home Department (supra) and R v Secretary of State for the Home Department ex parte Hatim (supra) distinguishable. However, since I am satisfied that the respondent has acted in accordance with the Convention, I will sustain the third plea-in-law for the respondent, repel the pleas-in-law for the petitioner and refuse the remedies sought in paragraph 3 of the petition.