OUTER HOUSE, COURT OF SESSION [2005] CSOH 4 |
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P982/03 |
OPINION OF LADY SMITH in the Petition of SERVET TEMEL Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to remove the Petitioner from the United Kingdom Respondent:
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Petitioner: Bovey, Q.C.; Wilson Terris & Co
Respondent: Lindsay; H.F. Macdiarmid, Office of the Solicitor to the Advocate General
14 January 2005
The Background Facts:
[1] The petitioner is a national of Turkey. He is married and has three children aged five, three and one, the youngest of which was born since his arrival in the United Kingdom. The petitioner and his family left Turkey and travelled to Germany, where he claimed asylum on 2 January 2002. They left Germany some time thereafter, arrived in the United Kingdom on 5 July 2002 and claimed asylum here on the same day. [2] The petitioner was interviewed in the usual way when he claimed asylum and stated that he had travelled directly from Turkey. He said that he had not made any previous asylum applications in the United Kingdom or elsewhere. He said that he did not know which countries he had travelled through to get to the United Kingdom. He was in possession of a German receipt dated 17 April 2002. His wife stated that the receipt had been in a box containing shoes that had been sent to her from Germany for her sons. In these circumstances, the respondent's office wrote to the relevant authority in Germany by letter dated 16 July 2002, enclosing a set of the petitioner's fingerprints and asking whether he was known in Germany (see: 7/10 of process). The petitioner was re-interviewed on 14 November 2002 and repeated that he did not know which countries he had travelled through before arriving in the United Kingdom. [3] The German authorities were unable to respond immediately to the request contained in the letter of 16 July 2002 as they were, apparently, having problems with a new computer system. A response was received from them on 10 March 2003 which contained a notice dated 6 February 2003 confirming that the petitioner's fingerprints had been matched positively and that he in fact had an outstanding asylum application in Germany. The respondent's department reacted to that by issuing a formal request dated 24 March 2003 to Germany to accept responsibility for the petitioner's asylum application under article 8 of the Convention determining the state responsible for examining the applications for asylum lodged in one of the member states of the European Communities signed at Dublin on 15 June 1990 ("the Dublin Convention"). That request was, accordingly, made more than six months after the date when the petitioner's application was lodged in the United Kingdom but within two weeks of the United Kingdom first becoming aware that the petitioner had gone to Germany prior to arriving in the United Kingdom and had claimed asylum there. Their ignorance of the petitioner having first applied for asylum in Germany was due to the petitioner having misled the authorities by his false statement that he had travelled directly to the United Kingdom from Turkey. The problem was compounded by the fact that it took Germany so long to process and respond to the United Kingdom's prompt request for information as to whether the petitioner was known to them. [4] By notice dated 1 April 2003, Germany accepted that it was, under article 8 of the Dublin Convention, the state responsible for examining the petitioner's asylum application and the respondent issued a certificate which was contained in a letter to the petitioner dated 27 May 2003 and was in the following terms:"The Secretary of State certifies that the conditions mentioned in section 11(2) of the Immigration and Asylum Act 1999 are satisfied, namely that:
(a) the authorities in Germany have accepted that, under standing arrangements, Germany is the responsible State in relation to your claim for asylum; and
(b) you are not a national or citizen of Germany."
Legislative and Treaty Background:
[6] The background to the present case, as in the similar cases of Ali v Secretary of State for the Home Department 2003 SLT 674, Ibrahim v Secretary of State for the Home Department 2002 SLT 1150, Khairandish v Secretary of State for the Home Department 2003 SLT 1358 and Musaj v Secretary of State for the Home Department 2004 SLT 623, is to be found in the legislative and treaty provisions of the Immigration and Asylum Act 1999 ("the 1999 Act") and the Dublin Convention. Whilst the former enables claims for asylum to be made in the United Kingdom by foreign nationals in furtherance of the United Kingdom's obligations under the United Nations Convention Relating to the Status of Refugees 1951 ("the Geneva Convention"), that Convention does not prevent the removal of claimants to safe third countries for the determination of their applications. The Dublin Convention sets out a scheme for determining which member state should have responsibility for doing so where an alien has entered the member states of the European Communities.Section 11(2) and (4) of the 1999 Act provides:
"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 Member State if -
(a) 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 ...
(4) " Standing arrangements" means arrangements in force as between Member States for determining which State is responsible for considering applications for asylum ...".
Section 15 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."
Articles 8 and 11(1) of the Dublin Convention provide:
"Article 8
Where no member state responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first member state with which the application for asylum is lodged shall be responsible for examining it. ...
Article 11
1. If a member state with which an application has been lodged considers that another member state is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other member state to take charge of the applicant.
If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged."
In Ali, Khairandish and Musaj, it was held that the Dublin Convention did not give rise to any legitimate expectation on the part of individual claimants that the United Kingdom would act only accordance with its terms, in its dealings with such applicants. It was not, accordingly, open to such claimants to seek to found on any non-compliance with the terms of the Dublin Convention. At the beginning of the hearing in the present petition, senior counsel for the petitioner made a motion that I should decline jurisdiction because I had been the judge who decided the case of Musaj and he proposed, in the present case, to challenge that decision. In those circumstances there would, he submitted, be an appearance of partiality. Having pointed out to senior counsel that it was open to him to seek to persuade me, in the course of the hearing to accede to whatever argument he sought to advance, I did not accept that his submission was well founded and did not decline jurisdiction. Nor did I accept a subsidiary submission that the matter should be made the subject of a report to the Inner House. However, in the event, the determination in Ali, Khairindish and Musaj, that the Dublin Convention does not give rise to a legitimate expectation in the minds of claimants that its terms will not be departed from, was not challenged in the course of the debate that ensued.
Pleadings and Submissions:
Petitioner -
The petitioner seeks declarator in the following terms:
"(a) that in certifying in the case of the petitioner the requirements mentioned in Section 11(2) of the Immigration and Asylum Act 1999 (c.33) are satisfied the respondent erred in fact et separatim law et separatim reached an unreasonable decision et separatim failed to give adequate et separatim comprehensible reasons ....
(c) declarator that the requirements of section 11(2) not having been met the proposed transfer of the petitioner to Germany is accordingly ultra vires of the respondent."
He also seeks reduction of: "the decision wherein the respondent certified that in the case of the petitioner the requirements mentioned in Section 11(2) of the Immigration and Asylum Act 1999 (c33) are satisfied."
[7] Senior counsel for the petitioner submitted that section 11(2) of the 1999 Act imposed as a precondition to the valid exercise of the power to certify that the member state purporting to accept responsibility is in fact doing so in terms of the standing arrangements. For the respondent to call upon the German authorities to take charge of the petitioner outwith the period of six months following the date of his application for asylum was, it was said, inconsistent with any agreement by them to do so being in accordance with the relevant standing arrangements. He also submitted that a certificate issued in such circumstances fell outwith the band of reasonable response that was open to the respondent, having regard to what was at stake for the petitioner. [8] His approach was one of statutory construction. The standing arrangements in force between Germany and the United Kingdom were those in the Dublin Convention. Article 11(1) of the Dublin Convention required any call on another member state to accept responsibility to be made within six months of the claimant's application being lodged with the requesting state. That had not happened in this case. The terms of article 11.1 required to be strictly construed, the drafters of the Convention having sacrificed the result that the respondent proposed, for certainty. It was not, accordingly, open to the respondent to certify that Germany had accepted responsibility for considering the petitioner's application under standing arrangements. Article 6 of the Dublin Convention was referred to by way of analogy. In the circumstances there envisaged, it would not be open to a member state to request another to accept transfer of an applicant if he had been living in the requesting state for over six months prior to making his application. Article 3.4 was also heavily relied on. It provides:"Each member state shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto."
Germany did not, because of the expiry of the six month period, have responsibility for examining the petitioner's application. That meant that they could only do so if, in accordance with article 3.4, the petitioner consented, which he did not. The certificate was, in these circumstances, prima facie, invalid.
[9] Senior counsel for the petitioner recognised that the respondent did not have the knowledge that enabled him to make the request of Germany until two weeks prior to him doing so but submitted that that did not matter. Article 11.1 specified that the six month period ran from the date of the application and its effect was not suspended in the circumstances of this case. It imposed a precondition and the court was bound to look behind the respondent's certificate to see whether what it certified was in fact the case: R v Secretary of State for the Home Department Ex parte Khera & Khawaga [1984] AC 74. The question of whether or not Germany had accepted responsibility under standing arrangements was a precedent fact and whether the approach adopted was in accordance with Khera and Khawaga or in accordance with Wednesbury requirements or on an error in fact basis, the result was the same. The certificate was factually wrong because the acceptance by Germany of responsibility outwith the six month period could not be in terms of the Dublin Convention. Fundamental rights were concerned and could not be overridden by general or ambiguous words: R v Secretary of State for the Home Department Ex parte Simms & anr [2000] AC 115 at p.131 per Lord Hoffman; R v Secretary of State for the Home Department Ex parte Anufrijeva [2004] 1 AC 604. The fundamental right relied on was the loss of liberty involved in the transfer of the petitioner to Germany against his wishes. [10] Separately, senior counsel for the petitioner submitted that it was unreasonable of the respondent to issue the certificate in that he could not properly have decided that Germany had accepted responsibility under standing arrangements. He did so under reference to R v Secretary of State for the Home Department Ex parte Canbolat [1997] Imm App Re 442, R v Secretary of State for the Home Department Ex parte Gashi [1999] Imm AR 415 and R v Secretary of State for the Home Department Ex parte Gashi & Gjoka unrepd 15 June 2000 EWHC Admin 356. He also referred to R v Secretary of State for the Home Department Ex parte Shah [2001] Imm AR 419 and sought to distinguish it on the basis that Collins J was, in that case, considering a certificate which was prima facie valid. Under reference to Musaj, at paragraph 27, senior counsel for the petitioner submitted that it was wrong to conclude that it was open to member states to waive the requirements of the Dublin Convention. They could not, he said, do so because the Dublin Convention set out what was to happen in a whole series of sets of circumstances and, in any event, even if they could waive the one month time limit for effecting transfers under article 11.5, they could not waive the six month time limit under article 11.1, which was fenced with a sanction. [11] Anticipating the respondent's submission that the petitioner was personally barred from relying on the failure to comply with the six month time limit, senior counsel for the petitioner submitted that personal bar could not be relied on to render valid that which was fundamentally null and void, as was, he said, the position with the respondent's certificate. He referred in support of that submission to Clyde & Edwards: Judicial Review at p.438-9 and the reference there to Rankine on Personal Bar at p.179.Respondent -
[12] Counsel for the respondent submitted firstly that if article 11.1 was properly interpreted there had been no failure to comply with its requirements and so the basis for the whole of the petitioner's submissions was shown not to exist. The petitioner's interpretation was, he said, very limited and restrictive and produced an absurd result. The Dublin Convention sought to achieve a logical system which avoided forum shopping by applicants and the petitioner's approach wholly undermined it, allowing an asylum seeker to circumvent it by deceit. To avoid that absurdity, it was necessary to read in the qualification that in calculating the six month period, there fell to be disregarded any period of delay caused by fraud or deceit on the part of the applicant. He referred in support of that submission to Bennion: The Interpretation of Statutes 3rd edition p.168-171. [13] His second submission was that, even if article 11.1 did not fall to be interpreted in the above manner, the petitioner was not in a position to submit that the respondent's certificate was unlawful, given the absence of relevant averments in support of such a case. The respondent could not, it was submitted, be said to have issued an unlawful certificate unless the German decision upon which it was based was itself an unlawful one. However, the petitioner had no relevant case that the decision of the foreign state, in this case, Germany, that it accepted responsibility for examining the petitioner's application under article 8 of the Dublin Convention, was unlawful, or that the respondent should have questioned its lawfulness. There was no averment that it was not a decision that the German authorities could lawfully make. The applicable law was not identified by the petitioner. There was no affidavit from a German lawyer indicating that there were prospects of that decision being set aside in Germany, as being unlawful there, as would have been expected in a case where a petitioner was relying on the decision of a foreign authority being unlawful. Whilst he seemed to have assumed that Germany had, according to German domestic law, no discretion on the matter, that was not something that he was entitled to do in the absence of averment and other material to that effect. In these circumstances, Germany's decision fell to be regarded as a lawful one and the petition should be dismissed. [14] Thirdly, counsel for the respondent submitted that it was not open to the petitioner to rely on the time limits set out in the Dublin Convention. They were, it was said, exclusively for the benefit of the member states, not for individual applicants such as the petitioner. It was submitted that it was clear that member states had a discretion as to whether or not to insist on the time limits and it was open to them to waive them. The Dublin Convention was principally concerned to establish the identification of a member state to consider the application and the procedure for transfer to the responsible state, where required. Despite the petitioner disavowing any intention of seeking to rely on the doctrine of legitimate expectation, the petitioner's argument proceeded, in a similar way to the argument that was advanced in Ali, Khairandish, Ibrahim and Musaj, where legitimate expectation was relied on, on the hypothesis that his rights had been infringed. They had not. The Dublin Convention had not been incorporated into domestic law and for the reasons advanced in those cases against the legitimate expectation argument, it was not open to the petitioner to assert that he had rights under or arising out of it. [15] Fourthly, counsel for the respondent relied on the doctrine of personal bar but only in answer to the petitioner's case that he acted unreasonably in issuing the certificate, recognising that, if the certificate was fundamentally lacking in validity, the doctrine of personal bar could not be relied on to cure it. The attack on the certificate under reference to Wednesbury unreasonableness proceeded, however, on the assumption that the certificate was valid. All the requirements of the doctrine of personal bar, as discussed by Clyde & Edwards at paragraph 13.25 and by Lord President Rodger, as he then was, in Wm Grant & Sons Ltd v Glen Catrine Bonded Warehouse Limited 2001 SC 901 at p.913, were met.Discussion
Interpretation of Article 11(1):
[16] It is appropriate to begin by considering whether or not the petitioner is well founded in proceeding, as he does, on the basis that the provisions of article 11.1 were not complied with because if he is wrong about that, his petition falls to be dismissed. The wording of article 11 evidences a desire amongst member states for transfer requests to be made promptly. That is entirely understandable and is in accordance with the ethos of the Convention. They are to be made "as quickly as possible" and "in any case within the six months following the date on which the application was lodged". If the transfer request is not made within six months, the state in which the application has been lodged is fixed with responsibility notwithstanding that transfer could have been requested within the six month period. Evidently member states considered it fair that if another member state were to delay unduly before making the transfer request, it should no longer be entitled to do so. Six months is fixed upon, it seems, as a period within which it is reasonable to expect one member state to make a transfer request of another. [17] Shortly put, the thrust of the petitioner's argument is that even if a member state has, throughout the six month period and through no fault of its own, no knowledge that the facts of the case are such as to enable it to request another member state to accept a transfer, it is prevented from doing so when that knowledge is subsequently acquired, even if prompt action is taken at that point. Further, the argument advanced is the same even if the applicant has, through fraud or deceit, misled the member state into thinking that there is no other member state which could be asked to take responsibility under the Convention and even in circumstances where, as here, not only is there another member state of whom the request could properly be made but the circumstances are that the applicant had previously lodged an application for asylum in that state.[18] I cannot accept the petitioner's argument. It is nonsensical, in my view, to approach the construction of article 11.1 on the basis that member states expect each other to take action at a stage when they do not have the relevant information to enable them to do so. That may be the literal meaning of the article given the use of the date of the application as a reference point for the start of the six month period but, equally, it has to be recognised that that is prefaced by the precondition that the requesting state has to consider that another member state is responsible, something that it cannot do until it knows, as a matter of fact, that one of the criteria in articles 4 to 8 apply. In those circumstances, I agree with the respondent that it is necessary to read into the provisions of article 11.1 a qualification so that the six month period will not run during any period that a member state has been disabled from having such knowledge due to fraud or deceit on the part of the applicant. Indeed, whilst it is not necessary, for the present case, to go that far, I would suggest that any period during which a member state did not have and could not reasonably have acquired the relevant knowledge would fall to be ignored, as being in accordance with the evident desire to provide for the point at which delay in making the request can fairly be regarded as undue. It would be only fair to disregard any period during which a member state could not reasonably have had the relevant knowledge.
[19] I am fortified in the view that I have reached by the discussion in Bennion that was referred to by counsel for the respondent. In particular, the reference to the case of Williams v Evans (1876) 1 Ex D 277 was helpful. In that case Field J said, at p.284:" No doubt it is a maxim to be followed in the interpretation of statutes, that the ordinary grammatical construction is to be adopted; but when this leads to a manifest absurdity, a construction not strictly grammatical is allowed, if this will lead to a reasonable conclusion as to the intention of the legislature."
Thus, in SJ Grange Ltd v Customs & Excise Commissioners [1979] 2 AER 91, at p.101, referred to by Bennion at p.169, Lord Denning said, of a literal construction of certain VAT provisions of the Finance Act 1972, that it:
" leads to such impractical results that it is necessary to do a little adjustment so as to make the section workable."
I would add that I did not find any assistance in the cases of Simms or Anufrijeva referred to on behalf of the petitioner. I do not agree that fundamental rights of the sort that were being discussed in those cases arise in the present case. The petitioner's fundamental liberty is not at stake. All that will happen is that he and his family will be transferred back to a country where he previously chose to seek to live and where he has already lodged an application for asylum. He did not assert that he would be prejudiced by having to leave the United Kingdom. In any event, even adopting the sort of care in interpretation that Lord Hoffman had in mind would not produce the result that the petitioner argues for. The absurdity would remain unless an interpretation which disregards the period during which the respondent was misled by the petitioner is followed and I do not see that anything that was said in either case would require the court to follow an interpretation that produces an absurd result.
Legality of the Respondent's Certificate
[20] There is no averment nor evidence lodged, whether by way of affidavit or otherwise, to the effect that the decision of the German authorities to accept responsibility for considering the petitioner's application under article 8 of the Convention was unlawful according to German law. Counsel for the petitioner submitted that it was not a question of looking at matters from the German perspective. It was a matter of examining the view that the respondent had formed and it was not open to him to hold the view that Germany had accepted responsibility under the Convention when the six month period had not been complied with. [21] The petitioner's approach is erroneous for two reasons. Firstly, I do not see the provisions of section 11(2) of the 1999 Act mean that another member state can only be said to have accepted responsibility "under standing arrangements" if all the provisions of the Dublin Convention have been complied with. It goes no further, in my view, than indicating that the requisite certificate can be granted in any case where another member state has accepted responsibility because of the Convention. Secondly, there is no question in this case of the petitioner advancing a case that it was not, under German domestic law, lawful for the United Kingdom's request to be acceded to. Whether it is a matter of there being a discretion available to the relevant authority in Germany, perhaps particularly so in a case where they had delayed in responding to the United Kingdom's original request for information or a matter of waiver or a matter of a particular interpretation being put upon the Convention under German law does not matter. What does matter is that the petitioner simply has no case that the German authorities were not entitled to act as they did. In these circumstances, I agree that his argument that the respondent's certificate was unlawful falls to be rejected. On the contrary, the respondent was quite entitled to certify in the terms that he did, on the basis of the information that he had regarding Germany's response to the article 8 request. Indeed, on the case presented by the petitioner, I do not see that it was open to him to take the view that Germany were not entitled to accede to the request that was made. Article 3.4 does not apply because, under Article 8, examination of the petitioner's application is Germany's responsibility.Whether Petitioner entitled to rely on Time Limits
[22] The petitioner did not seek to argue that he had a legitimate expectation that member states would abide by the time limits in the Convention. However, there did appear to be asserted on his behalf a right that they do so which was not very far removed from saying that he had a legitimate expectation that they do so. Counsel for the petitioner seemed to accept that he had no such legitimate expectation and he did not support his submission that the petitioner was entitled to rely on the failure to comply with the six month time limit with any cogent or distinct legal proposition. I do not accept that it is open to the petitioner to assert any entitlement to have the respondent comply with the six month time limit, for the same reasons as are given in Ali, Khairindish and Musaj in rejection of the proposition there advanced that the petitioners had legitimate expectations that the respondent would act only in accordance with the Convention.Wednesbury Unreasonableness/Personal Bar
[23] The petitioner's case that the respondent acted unreasonably was said to be advanced by way of fallback and was not pressed. I cannot, in the circumstances, conclude that it was not open to the respondent to reach the view that Germany had accepted responsibility under the Convention, given the terms of the document enclosed with their letter of 1 April (see: 7/7 of process ). Counsel for the petitioner drew attention to the fact that that document expressly refers to article 8 of the Convention. It is hard to see how, in these circumstances, the respondent should have done other than issue the certificate that he did. In any event, I agree that the petitioner, by misleading the respondent as to the facts behind his arrival in the United Kingdom so as to prevent him from making a transfer request within six months of his application, is personally barred from founding, were he otherwise entitled to do so, on the respondent's failure, when considering certification, to take account of any non-compliance with the six month time limit.Result
[24] In the circumstances, I shall sustain the first, second and third pleas in law for the respondent and dismiss the petition.