OUTER HOUSE, COURT OF SESSION [2006] CSOH 62 |
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OPINION OF LORD MENZIES in the Petition of NAUROZ AKHUND Petitioner; for Judicial Review of
a decision by an employee of the Immigration Service Enforcement Directorate
to refuse to allow the Petitioner to make an application for asylum in the ________________ |
Petitioner: D E L
Respondent: Lindsay;
C Mullin, Solicitor to the Advocate General
Legislation
[2] The present application falls to be determined in accordance with the provisions of Council Regulation (EC) No. 343/2003 and the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
[3] Article 10(1) of the Council Regulation provides as follows:
"Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) number 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place."
Article 13 provides as follows:
"Where no
Article 17(1) provides as follows:
"Where a Member State with which an application for asylum 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 3 months of the date on which the application was lodged within the meaning of Article 4(2), call upon the other Member State to take charge of the applicant.
Where the
request to take charge of an applicant is not made within the period of three
months, responsibility for examining the application for asylum shall lie with
the
[4] Section
33 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004
provides that Schedule 3 to that Act shall have effect. Part 2 of that Schedule gives a first list of
safe countries, and applies inter alia
to
"(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed -
(a) from the
(b) to a State of which he is not a national or citizen.
(2) A State to which this part applies shall be treated, insofar as relevant to the question mentioned in sub paragraph (1), as a place -
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion.
(b) from which a person will not be sent to another State in contravention of his Convention Rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."
Submissions for the petitioner
[5] Senior counsel for the petitioner challenged the validity of the Home Secretary's decision as set out in the first paragraph on the second page of the letter dated 8 April 2005, where it is stated that:-
"The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the application can be sent. There are no grounds for departing from this practice in your case."
He submitted that this was
unreasonable and irrational, and that there were grounds for departing from
that practice in this case. He accepted
that the letter contained a certificate by the Secretary of State for the
purposes of paragraph 5 of Schedule 3 to the 2004 Act, but in the circumstances
of this case this was not enough. The
Secretary of State had failed to take account of cogent evidence that it was
likely that the petitioner's application for asylum would not be examined
substantively by the Greek authorities.
In support of this he referred to two reports, each dated November 2004,
by the United Nations High Commissioner for Refugees relating to the asylum
procedure of asylum seekers returned to Greece, and aspects of refugee
protection in Greece, (numbers 6/1 and 6/2 of process). Where there was such evidence to the effect
that the Greek authorities would not consider the substantive merits of an
asylum application, he submitted that the Secretary of State required to go
beyond the deeming provisions of the 2004 Act, and consider such evidence; if he failed to do so, his decision would be
irrational. In support of this
submission, he referred me to R v Secretary of State for the Home Department
ex parte Bugdaycay [1987] AC 514, and in particular to the speeches of Lord
Bridge of Harwich at page 532 and Lord Templeman at 537. He also relied on the decision of the
European Court of Human Rights in TI
v
Submissions for the respondent
[7] Counsel
for the respondent invited me to repel all the petitioner's pleas-in-law, to
sustain the second plea-in-law for the respondent, and to refuse all orders
sought. The respondent's position was
based principally on the fact that Parliament had provided, in the 2004 Act,
that
[8] Counsel
submitted that this did not leave the petitioner without a remedy. On the hypothesis that Greece was not a
country in which the petitioner's application for asylum would be properly
investigated and examined, the problem lay with the primary legislation, and
not with the actings of the Secretary of State which were in accordance with
that legislation and required to be taken as a result of it. The petitioner's proper remedy was to seek a declaration
of incompatibility in terms of section 4 of the Human Rights Act 1998. He referred
me to section 6(2)(a) of that Act, and submitted that as a result of the terms
of Part 2 of Schedule 3 to the 2004 Act the Secretary of State could not have
acted differently; the language of
paragraph 3(2) of the 2004 Act was mandatory and allowed for no discretion on
the part of the respondent. He relied on
Ibrahim v Secretary of State for the Home Department [2001] Imm AR 430, and particularly
the opinion of Simon Brown LJ (as he then was) at paragraph 16. He also relied on the only Scottish authority
which shed light on this point, namely Abbas
Jalloh petitioner, 2002 SCLR 248,
and an unreported decision of the
Decision
"(a) that the person is not a national or citizen of the country or territory to which he is to be sent; (b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and (c) that the government of that country or territory would not send him to another country or territory otherwise in accordance with the Convention."
Because there was a requirement for the Secretary of State to certify that in his opinion these conditions were fulfilled, there was still scope for application to the courts for judicial review on the ground of unreasonableness, irrationality or the like.
[10] This was changed by the terms of the Asylum and Immigration Act 1999 section 11, which removed the requirement for the Secretary of State to certify that in his opinion these conditions were fulfilled. Instead, Parliament enacted that
"in determining
whether a person in relation to whom a certificate has been issued under
subsection (2) may be removed from the
(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention."
It was against this statutory
background that the cases of Ibrahim,
Abbas Jalloh and Mohammed were decided. Each
of these cases supports the respondent's position. Since then, the Asylum and Immigration
(Treatment of Claimants, etc) Act 2004 has been enacted. It is this Act which governs the present
application. If anything, it seems to me
that the wording of Part 2 of the Schedule 3 to the 2004 Act is even clearer
than section 11 of the 1999 Act in removing any discretion from the Secretary
of State in a matter such as this.
[11] Senior counsel for the petitioner submitted that the respondent
had an obligation in terms of the Geneva Convention to satisfy himself that
Greece was indeed a place in which the petitioner's application would be
substantively examined and not merely a place in which he would be "refouled"
to Afghanistan. I do not consider that
such an obligation rests with the respondent, who is obliged to comply with
primary legislation. He no longer has
the discretion which he formerly had.
The petitioner does not seek a declaration of incompatibility in terms
of section 4 of the Human Rights Act 1998.
Counsel for the respondent may be correct in suggesting that such a
course of action is open to the petitioner - I express no view on this
point. This petition is based on the
unreasonability and irrationality of the respondent's decision, but in light of
my views on the effect of the 2004 Act and the lack of discretion in the
respondent, it follows that he could have done nothing else. In the absence of discretion, questions of
unreasonableness or irrationality do not arise.
For these reasons I refuse this petition.