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Cite as: [2003] ScotCS 324

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Akkaya, Re Application for Judicial Review [2003] ScotCS 324 (23 December 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the petition of

ERCAN AKKAYA

Petitioner;

for judicial review of a decision of the Secretary of State for the Home Department to remove the petitioner from the United Kingdom

________________

Petitioner: Party

Respondent: Lindsay, Advocate; Advocate General's Office

23 December 2003

Responsibility for asylum application accepted by Germany in terms of Article 5(2) of Dublin convention
[1] The petitioner is a national of Turkey. He was born on 1 April 1971. His name is Ercan Akkaya (not Erkan Akaya). He is an asylum-seeker.

[2] The respondent is the Secretary of State for the Home Department. By letter dated 14 November 2001, the respondent advised the petitioner that he would be transferred to Germany in terms of the Dublin convention to have his application for asylum assessed there. The petitioner challenges the decision to transfer him.

[3] The United Kingdom and Germany are parties to the Geneva convention (relating to refugees seeking asylum) and the Dublin convention (relating to forum-shopping and multiple applications by asylum-seekers).

[4] Article 5(2) of the Dublin convention provides:

"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 ..."

[5] Section 11 of the Immigration and Asylum Act 1999 reflects Article 5(2) and provides:

"...Nothing in section 15 [which prohibits the removal from the United Kingdom of a person who has made a claim for asylum which has not yet been decided] prevents a person who has made a claim for asylum ("the claimant") from being removed from the United Kingdom to a member State if -

the Secretary of State has certified that -

(i) the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and

(ii) 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."

[6] The circumstances leading to the respondent's decision to transfer the petitioner to Germany were as follows: -

On 22 September 2001, the petitioner, his wife, and their one-year-old daughter arrived in the United Kingdom. They had travelled by Eurostar train through the Channel Tunnel. They immediately applied for asylum. The petitioner told immigration officers that he had no passport. However his papers had been photocopied by Eurostar before he boarded the train. The photocopies were sent to the immigration authorities acting on behalf of the respondent. The photocopies included a copy of the petitioner's passport, one page of which was stamped with a visa bearing to have been issued by the German consulate in Turkey. The visa entitled the petitioner to enter and remain in Germany between 23 August 2001 and 26 September 2001. The petitioner's wife's copy passport contained a similar visa.

[7] In the light of the visa issued by Germany, valid at the date of the application for asylum, the respondent wrote to the German authorities by letter dated 10 October 2001, formally requesting them to "accept the transfer of [the petitioner] for determination of his application for asylum" in terms of Article 5 of the Dublin convention. By letter dated 9 November 2001 (contained in number 7/3 of process), the German Federal Office for the Recognition of Refugees accepted the return of the petitioner and his dependants in terms of Article 5(2) of the Dublin convention.

[8] The respondent then sent a decision letter to the petitioner dated 14 November 2001, number 7/4 of process, in which he certified, in terms of the Dublin convention, that the authorities in Germany had accepted that Germany was the responsible state in relation to the petitioner's application for asylum. The letter also advised the petitioner that he was "returnable to Germany", and that there were no grounds for departing from the practice of refusing the petitioner's application for asylum without substantive consideration where there was a safe third country to which he could be sent. The petitioner was further advised that he had a right of appeal once he had left the United Kingdom.

Judicial review, and legal representation
[9] The petitioner received the respondent's decision letter dated 14 November 2001 at his address in London. He consulted solicitors in London. He sought judicial review of the respondent's decision, and in particular, reduction of the decision.

[10] After several months, the petitioner was allocated Flat Number 94, 60 Tarfside Oval, Glasgow G52 3AH. He was then represented by Messrs. Drummond Miller W.S.

[11] At a first hearing of the judicial review in the Court of Session on 20 November 2002, there was no appearance by or on behalf of the petitioner. By letter dated 20 November 2002 (number 7/5 of process) Messrs. Drummond Miller intimated that they were withdrawing from acting. The petitioner was ordained to intimate to the Deputy Principal Clerk of Session whether or not he insisted on the petition.

[12] The petitioner instructed Messrs. Hamilton Burns & Company, Solicitors, Carlton Place, Glasgow. By letter dated 2 April 2003, Messrs. Hamilton Burns & Company advised the court that, following upon a consultation with the petitioner, they had withdrawn from acting.

[13] On 16 April 2003, the respondent's motion referring to the withdrawal of Messrs. Hamilton Burns & Company came before the court. The petitioner was ordained to appear before the court on 30 April 2003 "to confirm his position in relation to his petition". On 30 April 2003, the petitioner appeared, accompanied by Mr. Zekai Aykut, interpreter. A new diet for the first hearing was arranged for 13 June 2003. At about this time, the petitioner consulted Messrs. Peter G. Farrell, Solicitors, Royston Road, Glasgow. That firm made an application to the Scottish Legal Aid Board.

[14] On 13 June 2003, the petitioner appeared in court accompanied by Mr. Aykut, interpreter. On the petitioner's motion, the first hearing was continued until 11 July 2003. On 11 July 2003, the petitioner, assisted by Mr. Aykut, moved that the diet be discharged. That motion was granted, and the case was appointed to be heard By Order on 13 August 2003 in order to "establish the position with the transfer of the petitioner's Legal Aid".

[15] On 13 August 2003 the petitioner appeared in the Vacation Court accompanied by Mr. Aykut. With the assistance of Mr. Aykut, he advised the court that Legal Aid was not available, that his solicitors could no longer act for him, and that he did not have the funds to pay for legal representation. The court outlined various options open to him, including obtaining financial assistance from friends or relatives, using a Mackenzie friend, or simply presenting the case himself with the assistance of an interpreter.

[16] On Friday 14 November 2003 the petitioner appeared at the continued diet of first hearing with Mr. Aykut, interpreter. He presented his own case with the assistance of Mr. Aykut.

Submissions for the respondent
[17] For the assistance of the court, it was decided that counsel for the respondent should present his submissions first.

[18] Counsel invited the court to repel the petitioner's pleas-in-law, and to sustain the respondent's second plea-in-law, which was in the following terms:

"The decision of the respondent to make directions for the removal of the petitioner to Germany not being unreasonable et separatim unlawful the petition should be dismissed."

[19] It was submitted that no question of legitimate expectation arose. The issue was whether the respondent had complied with the Dublin convention. If he had, the respondent's motion should be granted. If he had not, the respondent's decision would be in breach of section 15 of the Immigration and Asylum Act 1999. The decision letter dated 14 November 2001 certifying that Germany had accepted responsibility for deciding the petitioner's asylum application would then fall to be reduced. If that letter were reduced, section 15 of the 1999 Act would have the effect that the petitioner could not be removed from the United Kingdom until the merits of his asylum application had been determined.

[20] Counsel submitted that on 22 September 2001, when the application for asylum was made, the petitioner had a valid visa for Germany. As a result, by letter dated 10 October 2001, the respondent formally requested the authorities in Germany to "accept the transfer of [the petitioner] for determination of his application for asylum" in terms of Article 5(2) of the Dublin convention. By letter dated 9 November 2001, the Federal Office for the Recognition of Refugees duly "accepted [the petitioner] for return by the Federal Republic of Germany" in compliance with the United Kingdom's formal request. In so doing, the authorities in Germany undertook to consider the petitioner's application for asylum. The respondent had then sent the decision letter dated 14 November 2001 to the petitioner. Following upon Germany's acceptance of responsibility for the petitioner's application for asylum, the respondent sought to transfer the petitioner to Germany.

[21] Counsel for the respondent understood from informal discussions that the petitioner was founding upon irregularities which had occurred when his passport and visa had been obtained. However counsel submitted that Germany's formal acceptance of responsibility for the petitioner's application for asylum in compliance with the Dublin convention made any irregularity irrelevant: cf. R. v Secretary of State for the Home Department ex parte Ganidagli [2001] Imm. A.R. 202; R v Secretary of State for the Home Department ex parte Ahmed Shah [2001] Imm. A.R. 419; Celil Ali Ibrahim v Secretary of State for the Home Department, 20 March 2002 (Lord Carloway), paragraphs [16] and [17]. These decisions demonstrated that the respondent was entitled to rely upon Germany's formal acceptance. There was no need to investigate the circumstances in which the visa had been obtained. To do so would be to defeat and destroy the purpose of the Dublin convention. The petitioner should now travel to Germany, where his asylum application would be determined according to the Geneva convention, and also in compliance with the European Convention on Human Rights. Once he had left the United Kingdom, the petitioner would also be able to appeal against the respondent's decision letter dated 14 November 2001.

Submissions by the petitioner
[22] The petitioner then addressed the court, with the assistance of Mr. Aykut, interpreter.

[23] The petitioner stated that, as a result of the persecution which he faced in Turkey, he had not been able to apply personally for either a passport or a visa. If he had done so, he would have risked being arrested and mistreated. He had therefore opted to pay smugglers 12,000 Deutchmark to bring him into the United Kingdom. That fee had included the issuing of a passport, and other ancillary work. The smugglers had taken his Turkish identity card and two passport-size photographs. He had subsequently been handed a passport. The petitioner was not an expert. He could not tell whether the passport or visa had been forged. He had been desperate to leave Turkey because of persecution. He had not therefore been interested whether the passport and visa were genuine. The petitioner requested the court to allow him to live in the United Kingdom, a country which respected human rights. Following upon his arrival in Scotland, his wife had given birth to a baby boy, who was Scottish.

[24] The petitioner was asked to comment on the fact that Germany was willing to consider his asylum application, whether or not the visa had been properly obtained. The petitioner explained that he and his family wished to remain in the United Kingdom. Human rights were respected in the United Kingdom. The petitioner did not want to go to Germany. The petitioner asked whether the respondent ever checked what happened to other Turkish asylum-seekers who were transferred to Germany. The petitioner's understanding was that many Turkish Kurds were transferred to Germany, and then sent back to Turkey, where some had been murdered extra-judicially. Such an atrocity had recently occurred to a Kurdish person who had been returned to the Mersin province. He had been shot by Turkish police. The petitioner was afraid that something similar would happen to him. The petitioner emphasised that there had been no option but to leave Turkey, because of what was happening there. He had especially chosen the United Kingdom, where human rights were respected. He had not chosen Germany. He had been forced to resort to smugglers. The petitioner added that he had many relatives who had been granted leave to stay in the United Kingdom. He produced documentation relating to those relatives (lodged at the bar, and numbered as 6/3 to 6/15 of process). He also produced a statement which he had given, numbered as 6/16 of process. The petitioner added that he supposed that he could have asked his relatives to invite him to the United Kingdom. He could have come to the United Kingdom in a legal way, but he had not.

Opinion
[25] In R. v Secretary of State for the Home Department ex parte Ahmed Shah [2001] Imm. A.R. 419, a citizen of Afghanistan sought asylum. He had a forged passport containing a properly issued Portuguese visa. It was contended that a visa in a forged passport could not be said to be a valid visa. Collins J. observed:

"32 [Counsel's] basic submission was that a visa obtained by deception could not be a valid visa for the purposes of article 5.2. If that were not accepted, he submitted that, in any event, a visa obtained by someone other than the applicant in question could not be a valid visa. It must be a visa which had been obtained by that individual.

33 The difficulty with all these submissions is that the whole purpose behind the Dublin Convention is to ensure that there is a speedy determination as to which country is 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 Portuguese 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.

34 That, as it seems to me, is wholly consistent with the approach that is required by the Dublin Convention. It is to be noted that it is an approach which is also consistent with the manner in which other member states have construed this provision..."

The court ultimately rejected counsel's argument.

[26] Collins J.'s observations were quoted with approval by Lord Carloway in the unreported Scottish decision Celil Ali Ibrahim v Secretary of State for the Home Department, 20 March 2002.

[27] I respectfully agree with Collins J. and with Lord Carloway that the crucial issue is the formal acceptance of responsibility by the other country. In the present case, the United Kingdom's request letter dated 10 October 2001 contained the petitioner's details and also a copy of his passport with the relevant visa, and a copy of his wife's passport and visa. Once the authorities in Germany had considered the letter and enclosures, and had issued the formal letter dated 9 November 2001 accepting the return of the petitioner to Germany in accordance with article 5(2) of the Dublin convention with a view to determining his asylum application, it was not in my view necessary for the respondent to investigate the circumstances in which either the passport or the visa had been obtained.

[28] Accordingly, there is nothing before me to support the proposition that the respondent's decision letter (including certification) dated 14 November 2001 should be reduced. Standing that decision, it is not open to me to consider the petitioner's request that he and his family be allowed to remain in the United Kingdom.

Conclusion
[29] For the reasons given above, I shall repel the petitioner's pleas-in-law, sustain the respondent's second plea-in-law, and dismiss the petition. I reserve all questions of expenses to enable parties to address me on that matter.