AB, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 2751 (Admin)

Case No CO/13973/2012

[2016] EWHC 2751 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/11/2016

Before

MR JUSTICE SWEENEY

Between

THE QUEEN (on the application of AB)Claimant

THE SECRETARY OF STATE FORDefendant

THE HOME DEPARTMENTDefendant

Gordon Lee (instructed by Savic & Co) for Claimant

Jacqueline Lean (instructed by Government Legal Service) for Defendant

Hearing Hearing date: 9 February 2016

Judgment

Introduction

[1]By permission of Carr J, granted (together with an anonymity order) at an oral hearing on 10 September 2013, the Claimant applies for judicial review of the decision of the Defendant, made on 21 September 2012, to refuse to make a decision on the Claimant’s extant asylum application.

[2]The claim was stayed by consent in May 2014 – pending the outcome of the Claimant’s separate appeal to the First-tier Tribunal against the decision of an Entry Clearance Officer in Nairobi, made in November 2013, to refuse his claim of entitlement to enter this country as the spouse of a person settled here. The stay was agreed because it was anticipated that this claim would be rendered academic if the appeal was allowed. In the event, on 12 October 2015, the appeal was allowed by the First-tier Tribunal, but the Entry Clearance Officer then sought permission to appeal and it is not clear how long the appeal process will take. Hence the Defendant did not oppose the Claimant’s application to set aside the stay, which I grant.

[3]The central issue in the determination of this claim is thus the true construction of paragraph 334 in Part 11 of the Immigration Rules (hereafter “paragraph 334”), as in force at the material time, which set out the five matters of which the Secretary of State had to be satisfied in order to grant refugee status under the Rules. It provided, under the heading “Grant of asylum”, that:

“An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port in the United Kingdom; (ii) he is a refugee, as defined in regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006; (iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom; (iv) he does not, having been convicted by a final judgment of a particularly serious crime, constitute danger to the community of the United Kingdom; and (v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.”

[4]The critical aspect is sub-paragraph (i). The Claimant contends that the true construction of it, applied to the facts of this case, is that in order to make a decision as to whether to grant the Claimant refugee status the Defendant had only to be satisfied that the Claimant was in the United Kingdom when he made his application for asylum in May 2006 (which he was). Whereas the Defendant contends that, in order to be able to make a decision in September 2012, the Defendant had to be satisfied that the Claimant was then in the United Kingdom (which he was not).

[5]In the event of success, the Claimant has, during the course of the claim, variously argued for:(1) An order quashing the Defendant’s decision made on 21 September 2012.

(2) A mandatory order – compelling the Defendant to grant him asylum; or

(3) A mandatory order – compelling the Defendant to make a decision on his outstanding asylum claim; and

(4) An interim order – compelling the Defendant to allow him to enter the United Kingdom pending the resolution of his asylum claim and of his application for family reunion;

(5) A declaration that that the Defendant has acted unreasonably and/or unlawfully.

(6) Costs.

Background

[6]The background is long and complicated. It includes events in relation to other members of the Claimant’s family, and much other litigation. I have taken the full history into account, but propose to summarise only aspects of it below – respecting the anonymity order in the process.

[7]The Claimant came to this country on a visitor’s visa in early May 2006. He had his passport, from his African country of nationality, which was valid until May 2012. On 30 May 2006, whilst still here, he applied for asylum. He surrendered his passport and was interviewed on a number of occasions. Subsequently a claim was begun in this court over the failure by the Defendant to make a decision in relation to the application, but that claim was then withdrawn by consent.

[8]At all events, on 31 October 2007 the Claimant’s application for asylum was refused upon the basis, under Article 1F (a) of the United Nations Convention and Protocol Relating to the Status of Refugees (“the Refugee Convention” - which is referred to in paragraph 334 as the Geneva Convention) that the Claimant was involved in a crime against peace, a war crime, or a crime against humanity. However, the Claimant was granted exceptional leave to remain for six months and his passport was returned to him. Thereafter he travelled (for relatively short periods) from, and returned to, this country.

[9]In April 2008, the Claimant was granted exceptional leave to remain for a further six months. On 4 June 2009, the Defendant (albeit accepting that the Claimant was at risk of persecution) rejected the Claimant’s application for asylum for a second time – again by reference to Article 1F (a) of the Refugee Convention. However, the Claimant was granted further exceptional leave to remain for six months, and continued to travel from, and to return to, this country.

[10]There were further grants of exceptional leave to remain for six months in January and November 2010. In the meanwhile, the Claimant had appealed against the rejection of his application for asylum – initially to the Asylum and Immigration Tribunal, then to the Upper Tribunal, and then to the Court of Appeal. The latter granted leave to appeal in January 2011 and, in September 2011, leave (if required) to argue further grounds.

[11]On 8 November 2011 the Claimant’s appeal to the Court of Appeal was allowed by consent, and the Defendant undertook to make a fresh decision on the Claimant’s asylum application by 8 February 2012. On 9 November 2011 the Claimant was again granted exceptional leave to remain for six months and, because his passport had been mislaid by the United Kingdom Border Agency, was issued with a Certificate of Travel limited to the United States – which he duly travelled to and returned from.

[12]In the meanwhile, in December 2011, a number of the Claimant’s children had arrived in this country and applied for asylum. Thereafter, a close relative of the Claimant was killed, and in consequence he sought to widen the places to which he could travel on the Certificate of Travel, but that was refused. The Claimant then sought judicial review of that refusal. In mid-January 2012, this court ordered that the Claimant be issued with a geographically unrestricted Certificate of Travel, valid until 17 February 2012. The Claimant undertook to comply with that timeframe. He was additionally granted exceptional leave to remain until 9 August 2012.

[13]Using the Certificate of Travel, the Claimant then left this country to deal with various matters consequent upon his close relative’s death. The Defendant thereafter failed to make a decision on the Claimant’s asylum application, as required, by 8 February 2012, but undertook to do so by 27 April 2012.

[14]On 13 February 2012 the Claimant, whilst still abroad, invited the Defendant to extend the validity of his Certificate of Travel beyond 17 February. In correspondence, the Defendant made clear that she was not prepared to extend the certificate whilst the Claimant was abroad, but that the Claimant’s passport had been found and could be exchanged for the Certificate whilst the Claimant was abroad. The Defendant also sought clarification of whether the Claimant held any other passports or travel documents, and he responded that he did not.

[15]At all events, there was no agreement between the parties. On 17 February 2012 the Claimant made an application to this court to extend the validity of the Certificate. The application failed. In the end, the Claimant remained abroad (he argues for good reason) until 11 March 2012 when, with help from the Defendant, he returned. He returned the Certificate of Travel (which showed only travel to and from Uganda). His passport (which, as indicated above, had been found but was due to expire in early May 2012) was not returned to him. Thereafter he was interviewed again in relation to his asylum application, and litigation continued in relation to the issue of another Certificate of Travel.

[16]In the meanwhile, another of the Claimant’s children had arrived in this country and had applied for asylum – followed (later in March 2012) by the Claimant’s wife and two younger children, who also applied for asylum.

[17]In late March 2012, the Claimant informed the Defendant that there was a need for him to travel to the United States in mid-April to take part in talks there as part of a peace process. The litigation in relation to the issue of another Certificate of Travel continued. On 13 April 2012 an Order was made, on the papers, in that claim refusing the Claimant permission to apply for judicial review and interim relief (travel to the United States) – upon the basis that he was, amongst other things, asking the court to make an initial decision as to the issue or not of another Certificate.

[18]The Defendant then failed to make a fresh decision on the Claimant’s asylum application by 27 April 2012, but indicated that she would do so by 18 May 2012.

[19]In early May 2012, the Claimant’s passport from his country of nationality expired.

[20]On 17 May 2012 the Special Cases Directorate, in a report to the Defendant, concluded that there was insufficient evidence to justify the recommendation of refusal of asylum on the basis that the Claimant was involved in crimes of the type referred to in Article 1F (a) of the Refugee Convention, but suggested that there were inconsistencies in the Claimant’s application for asylum which meant that the application should, nevertheless, be refused.

[21]The Defendant did not make a decision on the Claimant’s application for asylum, as she had previously indicated that she would, by 18 May 2012. Seven days later the Claimant made an application to the Court of Appeal to enforce / vary the consent order made on 8 November 2011.

[22]On 12 June 2012 the Defendant finally made a fresh decision on the Claimant’s application for asylum – refusing it on the basis that the Claimant could apply to re-locate to another African country.

[23]On 6 July 2012 the Claimant submitted a formal application for indefinite leave to remain.

[24]Also in early July 2012, in the enforcement proceedings in the Court of Appeal, Sullivan LJ ruled on the papers that, although the application had originally been validly made, it had become an abuse of process - given that a decision had finally been made by the Defendant. Sullivan LJ further indicated that the application to vary was a spurious attempt to make a wholly new challenge under the guise of a variation, and that if the Defendant’s decision made on 12 June 2012 was unlawful, the proper remedy was to appeal to the Asylum and Immigration Tribunal.

[25]An appeal to the Asylum and Immigration Tribunal was lodged on 9 July 2012.

[26]In the meanwhile, the Claimant had sought assistance, as to the provision to him of another Certificate of Travel, from the firm facilitating the peace process touched on above. On 13 July 2012, the Claimant’s solicitor was informed by the principal of that firm that if an application for a Certificate was made it would receive immediate support from both the Prime Minister’s Office and the Foreign and Commonwealth Office. On 16 July 2012, the Claimant’s solicitor sought information from the Defendant as to where the Claimant should attend to make the application, but received no reply.

[27]On 24 July 2012, the Claimant left this country – he says because of the urgency of the situation in connection with his role in the peace process. He had no Certificate of Travel and did not inform the Defendant (who was unaware both that the Claimant had any other travel document and that he had left). The Claimant asserts that he always intended to return.

[28]As already indicated, the Claimant’s original passport had expired two months earlier. In order to travel on 24 July 2012 he used a Ugandan passport in his own name, which was valid from 23 May 2012 for three years. The passport wrongly asserted that the Claimant was a citizen of Uganda, and also stated a place of birth that was incorrect. The Claimant asserts that the passport had been provided to him for political reasons to be used as absolutely necessary, but accepts that he used it despite legal advice not to do so.

[29]The Claimant was also in possession of another passport with his photograph in, but in another name, that had been issued to him in early June 2012 by Mali. It was valid for five years and was provided to the Claimant, he accepts, as a result of him having a friend who was close to the President of Mali.

[30]On 3 August 2012, the working day before a hearing in the Claimant’s appeal to the Asylum and Immigration Tribunal against the Defendant’s refusal of asylum on 12 June 2012, the Defendant abandoned that decision with a view to re-making it (with a right of appeal) within three months – because the decision had proceeded, in error, on the basis that the Claimant was an illegal entrant.

[31]On 9 August 2012, whilst he was still abroad, the Claimant’s exceptional leave to remain expired.

[32]On 20 August 2012 the Claimant’s solicitors were asked, on behalf of the Defendant, whether the Claimant was in this country. On 18 September 2012 the solicitors replied that he was not, and that he had been issued with a travel document, in confidence, by a friendly state for political reasons – to be used as absolutely necessary. The nature of the travel document and the identity of the friendly state were not specified.

[33]In the letter at the heart of this claim, which (as touched on above) was written on the Defendant’s behalf on 21 September 2012 it was stated that:

“…..I note that you have now confirmed that your client is no longer in the United Kingdom, having departed on a travel document issued by a ‘friendly state’……..As your client is no longer in the United Kingdom the Secretary of State is not in a position to take forward his claim for asylum, and in light of your client’s actions, a further decision cannot be made…………If and when your client seeks to re-enter the United Kingdom, any further application for asylum will involve an interview and your client will be expected to inform the Secretary of State of his change in circumstances. I note that, if he intends to return to the United Kingdom, your client will need to satisfy the Immigration Officer at the port of entry that he qualifies for admission…….”

[34]The Claimant responded to the letter by seeking relief from the Court of Appeal by way of an order that the Defendant grant a document confirming the Claimant’s entitlement to refugee status and a travel document in line with that status; or an order requiring the Defendant, within 7 days, to issue a reasoned decision as to why the Claimant did not qualify for refugee status.

[35]In October 2012, the Claimant asked the Defendant if he could return to this country on the same facilitated basis that he had in March 2012, but that was later refused. Also in October 2012, and in view of the fact that the Claimant had obtained the Ugandan passport, the proceedings in this court in relation to the issue of a Certificate of Travel were concluded by consent.

[36]In December 2012, the Court of Appeal dismissed the Claimant’s application for relief (above) – concluding that it was an abuse of process as it was a thinly disguised attempt to make a wholly new challenge to new decisions, which challenge should be made in this court.

[37]Shortly thereafter the instant claim was lodged.

[38]By January 2013 no decision had been made by the Defendant on the various applications for asylum made by the Claimant’s wife and children. In the result they were granted permission to seek judicial review – with Collins J strongly criticising the delay, and expressing the view that it was inevitable that their applications for asylum would succeed.

[39]The following month the Claimant’s wife and children were granted asylum – each with leave to remain for a period of five years.

[40]Against that background, in July 2013 the Claimant invited the Defendant to grant him permission and assistance to return to this country. In response, the Defendant indicated that if the Claimant’s application was to be progressed he would have to register his biometrics at a convenient office abroad.

[41]In mid-August 2013 the Claimant formally applied, via his solicitor, for leave to enter this country as the spouse of his wife who was settled here.

[42]As indicated above, Carr J granted permission in this claim in September 2013.

[43]In November 2013, the Claimant’s application to enter this country as the spouse of a person settled here was refused (for a number of reasons) by an Entry Clearance Officer in Nairobi. The Claimant was served with that decision the following month, and thereafter appealed against it to the First-tier Tribunal.

[44]As already touched on, in May 2014 this claim was stayed – pending the outcome of the appeal to the First-tier Tribunal which, in October 2014, declined to expedite the hearing of that appeal.

[45]In May 2015 the Ugandan passport issued to the Claimant, in his own name, expired. By then he was already using the passport issued to him, in another name, by Mali and continued to do so. He has a visa that allows him to travel in the Schengen Area.

[46]As indicated above, on 12 October 2015 the First-tier Tribunal allowed (in strong terms) the Claimant’s appeal, and the Entry Clearance Officer has sought permission (on three Grounds) to appeal against that decision – but the time period within which that will be determined is uncertain.

Legal Framework

[47]I was invited to consider paragraph 334 of the Immigration Rules in the context of a number of other provisions, and of a decision of the House of Lords, all of which I set out or summarise below.

[48]Article 1A (2) of the Refugee Convention defines a “refugee” as a person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”

[49]The States Parties to the Convention owe various duties to refugees – including (until their status is regularised or they obtain admission to another country) only to apply necessary restrictions to their movements (Article 31(2)); not to expel them lawfully from their territory save on grounds of national security or public order (Article 32); and not to return (“refouler”) them to territories where their lives or freedom would be threatened (Article 33).

[50]Article 40(1) of the Refugee Convention provides:

“Any State may, at the time of the signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible.”

[51]Article 2(2) of Directive 2011/95/EU (“the Qualification Directive”) defines a “refugee” as:

“…a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a political social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself or the protection of that country…”

[52]Chapter II of the Qualification Directive deals with the assessment of applications for international protection, and Article 4(1) provides:

“Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for internal protection. In cooperation with the applicant, it is the duty of the Member State to access the relevant elements of the application.”

[53]Chapter III of the Qualification Directive concerns qualification for being a refugee. Articles 9, 10, 11 and 12 respectively deal with acts of persecution, reasons for persecution, cessation and exclusion.

[54]Article 13 of the Qualification Directive provides:

“Member States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III.”

[55]Article 3(1) of Directive 2005/85/EC (“the Procedures Directive”) sets out the scope of the Directive:

“This Directive shall apply to all applications for asylum made in the territory… of the Member States…”

[56]Article 7 of the Procedures Directive provides:

“Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III…”

[57]Article 10(1)of the Procedures Directive provides:

“… Member States shall ensure that all applicants for asylum enjoy the following guarantees: … (d) they shall be given notice in reasonable time of the decision by the determining authority of their application for asylum.” … (d) they shall be given notice in reasonable time of the decision by the determining authority of their application for asylum.”

[58]Section 2 of the Asylum and Immigration Act 1993 provides:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the [Refugee] Convention.”

[59]Regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2 defines “refugee” as:

“a person who falls within Article 1(A) of the Geneva Convention and to who regulation 7 does not apply”

[60]Regulation 7 concerns exclusion from refugee status.

[61]Paragraphs 327, 328, 333 & 333A of the Immigration Rules, as then in force, variously provided that: “327. Under the Rules an asylum applicant is a person who either;(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or

(b) otherwise makes a request for international protection. “Application for asylum” shall be construed accordingly. … 328. All asylum applications will be determined by the Secretary of State in accordance with the Geneva Convention.… 333. Written notice of decisions on applications for asylum shall be given in reasonable time… 333A. The Secretary of State shall ensure that a decision is taken by him on each application for asylum as soon as possible, without prejudice to an adequate and complete examination. …” (a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or (b) otherwise makes a request for international protection. “Application for asylum” shall be construed accordingly. …

[62]Paragraph 333C provided that:

“If an application for asylum is withdrawn either explicitly or implicitly, consideration of it may be discontinued. An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by the Secretary of State. An application may be treated as impliedly withdrawn if an applicant fails to attend the personal interview as provided in paragraph 339NA of these Rules unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond his or her control. The Secretary of State will indicate on the applicant’s asylum file that the application for asylum has been withdrawn and consideration of it has been discontinued.”

[63]Paragraph 336 provided that:

“An application which does not meet the criteria set out in paragraph 334 will be refused. Where an application for asylum is refused, the reasons in fact and in law shall be stated in the decision and information provided in writing on how to challenge the decision.”

[64]Subsequent paragraphs dealt with the consideration of applications and the materials that the applicant had to provide to the Defendant, including any identity or travel documents – see paragraph 339HA onwards and, in particular, paragraph 339I(iii).

[65]In Odelola v SSHD

[2009] 1 WLR 1230

the House of Lords summarized the legal status of the Immigration Rules thus at [6]:

“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the crown as how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.”

Lord Hoffmann continued at [7]:

“They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules.”

The Arguments

[66]On the Claimant’s behalf, Mr Lee advanced two broad arguments, namely that:(1) The Defendant had misdirected herself as to the effect of paragraph 334(i), particularly when read with s.2 of the Asylum and Immigration Appeals Act 1993, the Refugee Convention and the Qualification and Procedures Directives; that there is no requirement that an applicant be within the jurisdiction at the time of the decision of his asylum claim, and thus the Defendant is under a duty to make a decision on the Claimant’s outstanding asylum claim notwithstanding the fact that he is outside the jurisdiction.

(2) The failure to make a decision on the asylum claim amounts to an abuse of power, conspicuous unfairness and is unreasonable, and thus the Defendant ought to allow the Claimant to enter the United Kingdom in order to facilitate the grant of asylum to him.

[67]In support of those arguments Mr Lee relied on the history of events since May 2006 and submitted, in summary, that:(1) Since 2007 the Claimant had travelled extensively outside this country – largely in relation to the peace process and with the Defendant’s agreement or encouragement. There was a regular pattern of leaving and returning without complaint by the Defendant – who, in relation to the Claimant’s asylum application, had otherwise delayed and then eventually made unlawful decisions. However, it was clear that her policy was not one that if an applicant left their application lapsed.

(2) It was important to note that in R (on the application of FH and others) v Secretary of State for the Home Department

[2007] All ER (D) 69

(Jul) in giving judgment in relation to a number of applications for judicial review which were based on delay in making asylum decisions, Collins J said at [29]: “I would only add a footnote. Since a substantial delay is, at least for the next five years or so, likely to occur in dealing with cases such as these, steps should be taken to try to ensure that so far as possible claimants do not suffer because of the delay……Measures should be taken to minimise any prejudice to applicants occasioned by the delay. Thus those who were being given support should continue to receive it, those who were able to work should be permitted to continue to do so, and there should be favourable consideration of desires to travel outside the United Kingdom for short periods……… without affecting the validity of the application. Applicants should not suffer any more than is inevitable because of delays which are not in accordance with good administration even if not unlawful.”

(3) By 24 July 2012 the Claimant had no real confidence in the Defendant making a timely decision, and had had to leave (using the Ugandan passport) because of an urgent need to deal with matters in connection with the peace process. He had always intended to return, and his voluntary departure did not amount to an abandonment of his claim. Indeed, by analogy with s.92(8) of the Nationality, Immigration and Asylum Act 2002 (as substituted), which provides that where an appellant brings an appeal from within the United Kingdom the appeal shall be treated as abandoned if the appellant voluntarily leaves the United Kingdom before the appeal is finally determined (see SR (Algeria) v Secretary of State for the Home Department

[2015] EWCA Civ 1375

), legislation would be required before a departure such as the Claimant’s could have that effect on his application for asylum.

(4) On its ordinary meaning, paragraph 334(i) does not require a person to be in the United Kingdom at the time of the decision on his asylum application. It does not make sense to interpret it as requiring the Defendant to be satisfied that at the time of the decision the applicant “has arrived at a port of entry” – as such an interpretation would suggest that a person could apply for asylum outside the United Kingdom, and be granted asylum provided that, at the time of the decision, he had arrived at a port of entry in the United Kingdom, which would be inconsistent with paragraph 327, which defines an “asylum applicant” as a person who claims that it would be “contrary to the United Kingdom’s obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom”.

(5) Against the background of the requirement in s.2 of the Asylum and Immigration Appeals Act 1993 (above) that nothing in the Rules shall lay down any practice which would be contrary to the Refugee Convention; and of the content of paragraph 328 of the Rules (above) which states that all applications will be determined in accordance with the Refugee Convention; and in view of the presumption that domestic law accords with the United Kingdom’s international law obligations - interpreting paragraph 334(i) as meaning that the Defendant must be satisfied that the applicant is in the United Kingdom or has arrived at a port of entry at the time of his application is consistent with the Refugee Convention, as it is the applicant’s presence in, or arrival at, the United Kingdom which triggers the territorial application of the Refugee Convention (see e.g the decision of the House of Lords in R (European Roma Rights) v Prague Immigration Officer

[2005] 2 AC 1

(6) However, introducing a requirement that the Defendant must also be satisfied that the applicant is in the United Kingdom at the time of the decision is inconsistent with the Refugee Convention – as there is no requirement in the Convention that the applicant must be in the State Party at the time when the decision to recognise refugee status is made. To introduce such a requirement would dilute the protection of the Convention – which the Claimant’s position illustrates, as he remains outside the country of his nationality and unable or unwilling to avail himself of the protection of that country, and the United Kingdom remains obliged to afford him the protection of the Convention, notwithstanding that he “could not” remain here indefinitely pending a decision on his application.

(7) The Procedures Directive (above) applies, by virtue of Article 3(1), to all applications for asylum made in the territory of the Member State. Under Article 7 that Directive permits, but does not require, applicants to remain in the Member State pending the determination of their claim and, under Article 10(1)(d) guarantees that applicants be given notice in reasonable time of the decision on their applications made in the territory of the Member State. A requirement that an applicant must be in the United Kingdom at the time of the decision is thus inconsistent with the Directive as, provided the applicant made the application whilst in the relevant territory, he is permitted but not required to remain there pending the decision.

(8) Similarly, under the Qualification Directive (above) the Defendant has an obligation to grant refugee status to a third-country national who qualifies as a refugee as defined in Article 2(d) and in accordance with Chapters II and III of that Directive. There is no requirement in the Directive for the person to be in the Member State at the time that the decision is made.

(9) Thus paragraph 334(i) must and can be interpreted in conformity with the Directives by interpreting it to mean that an applicant who, at the time of his application is in the United Kingdom, or who has arrived at a port of entry, will be granted asylum where the other requirements of the paragraph are met.

(10) In any event, in view of paragraph 333 of the Immigration Rules, Article 13 of the Qualification Directive, and Article 10(1)(d) of the Procedures Directive (all above) the Defendant had a duty to make a decision to grant or refuse the application, but could not simply refuse to make a decision on the basis that the Claimant is no longer in the United Kingdom.

(11) After some 10 years it was high time that the Defendant made a decision. The passage of time was caused by the Defendant’s delays and a series of unsustainable decisions each of which had had to be withdrawn. The decision to refuse the Claimant entry as the spouse of a person settled here was absurd – as demonstrated by the judgment of Collins J (and the eventual grant of indemnity costs) in the judicial review proceedings brought by the Claimant’s wife and children (above), and [17]-[19] of the judgment of the First-tier Tribunal judge (above).

(12) The Claimant was in France, using the passport (in another name) issued by Mali and the Schengen Visa. However, if he was to apply for asylum in France they would say that, under the Dublin II Regulation, this country was responsible for making the necessary decision.

(13) Despite her “somewhat contrived” claim that her hands were somehow tied by paragraph 334(i), the Defendant retained a discretion to depart from that paragraph – in consequence of the exercise of which she could decide to grant asylum to the applicant although he was not in the United Kingdom; or take an in-principle decision that she will grant asylum and formally grant it on the Claimant’s arrival in the United Kingdom; or she could issue him with a laisser passer to permit his return; or she could invite him to attend a British Embassy for him to be granted asylum

(14) It was clear that, in reality, the Defendant was influenced by considerations relating to the Government of the Claimant’s African country of origin. Whilst it was within the Defendant’s policy to exclude from refugee status for political reasons, that appeared to have been deliberately avoided in this case.

(15) Nor (on fundamental public law principles) could the Defendant seek to benefit unfairly from her past failures and/or unfair conduct in the case (particularly given the grant of refugee status to the Claimant’s wife and children). Rather, the court should intervene to require the Defendant to rectify or cure conspicuous unfairness.

(16) The Defendant had hitherto defended the claim, in part, upon the basis that the Claimant no longer required the protection of the United Kingdom, because he may have the protection of Uganda (which issued the passport that he used when leaving this country in July 2012) and that that raised questions under paragraph 334(ii) and (v). However, in reality, even if the Claimant had been afforded such protection he remained a refugee within the meaning of paragraph 334(ii) and the reference to Uganda was a red herring. In any event, the Defendant could not lawfully rely on paragraph 334(i) to refuse to make a decision on the Claimant’s asylum application on the basis that he was not in the United Kingdom, and then seek to justify the refusal on the basis of other aspects of paragraph 334.

[68]On behalf of the Defendant, Miss Lean submitted, in summary, that:(1) The allegations of misconduct made against the Defendant were refuted and, in any event, irrelevant.

(2) The Claimant’s application to enter this country as the spouse of a person settled here was separate to his application for asylum. Nor were the merits all one way as the three Grounds of Appeal in relation to the judgment of the First-tier Tribunal were strong.

(3) The Claimant had had discretionary leave to remain, broadly from October 2007 until August 2012, and so had been able to travel (using his original passport or a Certificate of Travel) during that period when doing so with the Defendant’s agreement.

(4) The delay in making a decision on the Claimant’s application for asylum, following the consent order in the Court of Appeal in November 2011, was understandable given, amongst other things, the fact that the Claimant had failed to honour his undertaking to return the Certificate of Travel by 17 February 2012, and had left this country on 24 July 2012 (using the Ugandan passport) without informing the Defendant, who only found out about it in September 2012.

(5) The Claimant’s absence from this country in September 2012 meant that his application did not fall to be determined.

(6) The Immigration Rules, as then in force, provided a detailed framework. As part of that, paragraph 327 (above) made clear that an asylum applicant is a person who either makes a request on the basis that it would be contrary to the United Kingdom’s obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom, or who otherwise makes a request for international protection.

(7) Paragraph 333C (above) already provided for the explicit or implicit withdrawal of an application for asylum. There had been no withdrawal when the Claimant had travelled, whilst he had discretionary leave to remain, with the Defendant’s agreement. Travel in those circumstances was within the Defendant’s policy. The circumstances in which the Claimant had left in July 2012, and had been abroad since, were very different.

(8) The numbered sub-paragraphs in paragraph 334 (above) were the conditions the existence of which the Defendant had to be satisfied of at the time of grant, not at the time of original application. The plain text was clearly consistent with the Defendant’s interpretation, the Rules clearly distinguished between the two situations, and paragraph 336 (above) stated in terms that an application that did not meet the criteria set out in paragraph 334 would be refused.

(9) The Refugee Convention (see e.g the judgment in the Prague case (above) at [15]-[17]) imposed international obligations on the United Kingdom in respect of refugees, but only refugees who were in the United Kingdom (or at a port of entry). Even if the Claimant was still to be regarded as a refugee as a matter of international law, and entitled to protection under the Convention, he was not in the United Kingdom.

(10) There was nothing of help to the Claimant in the decision of Collins J in FH (above), as the decision was implicitly made on the basis that, normally, if an applicant did leave the United Kingdom they would lose their right. It was certainly not authority for the proposition that if you travelled without agreement you did not, or could not, lose your right. Rather, what was reasonable in terms of time taken to make a decision all depended on the individual circumstances, and the fact was that the Claimant had left voluntarily, without notice and for a long period.

(11) The Qualification Directive and the Procedures Directive, which were “to give effect to the Convention”, were both silent as to the consequences when an applicant voluntarily left the country in which he had applied. There was no inconsistency between them and the Defendant’s application of paragraph 334 in this case.

(12) The Claimant’s reliance on Dublin II was misplaced. If an asylum seeker goes to a second country that country has to return him to the first country, which was not supportive of the Claimant’s argument.

(13) The Claimant’s assertion that the Defendant had unlawfully relied on doubts as to the Claimant’s entitlement to asylum was misconceived. The Defendant’s conduct had been neither unlawful nor irrational. The fact that the Claimant had freely travelled to a third country, using a passport which the Defendant was not previously aware that he held, was clearly relevant to the merits of his asylum claim. It served to demonstrate the good sense in ceasing to determine a claim for asylum where the Claimant had voluntarily left the United Kingdom.

(14) In practice, unless an applicant for asylum offered a prior satisfactory explanation for the need to temporarily leave the country, the Defendant did not proceed to determine applications for asylum from those who were no longer in the United Kingdom (or at a port of entry) as, in general, it could properly be inferred that those who voluntarily left the United Kingdom were no longer in need of its protection.

(15) The circumstances of the instant case were such that the Claimant’s conduct in voluntarily leaving the United Kingdom and travelling to Uganda and (it was presumed) residing there for a substantial period, meant that the original basis upon which his claim for asylum was made could no longer stand. The Defendant would need to interview the Claimant to establish whether or not he was entitled to international protection, particularly as he appeared to be able to freely travel to Uganda and other countries and to reside there.

(16) As to the assertion that the Defendant should exercise her discretion to determine the asylum application, the Defendant was entitled to decline to determine the application in the Claimant’s absence from the UK, and there was no basis for the proposition that the failure to exercise a discretion otherwise was not in accordance with the law.

(17) Any further decision would have to be made on the basis of the Claimant’s current position and thus, if the Court was against the Defendant, the only appropriate outcome would be for the Court to find the Defendant’s position to be unlawful via delay, and to order her to make a fresh decision now.

[69]In reply Mr Lee argued, in short, that:(1) Context was everything. The Claimant had been constructively forced to leave this country because he had been kept waiting so long and the war crimes issue had been decided in his favour.

(2) In accordance with paragraph 327 the Claimant was an asylum applicant whose application, in accordance with paragraph 333, had to be decided within a reasonable time (and in any event within six months).

(3) Paragraph 333C (as to the withdrawal of applications for asylum) was full of qualifications – in particular that an application “may” be treated as impliedly withdrawn. Treating an application as being impliedly withdrawn was therefore not mandatory, but rather was within the discretion of the Defendant – which had to be exercised in a reasonable and lawful manner. There was nothing to show that the Claimant had ceased to be an applicant when he left.

(4) In the Prague case (above) the House of Lords had been concerned with the need for an applicant for asylum to be in the territory of the country of sanctuary, and to make their application there. The decision in that case did not assist with the issue in this case.

(5) The Directives were in the Claimant’s favour.

(6) It was clear the Defendant was acting for political reasons, but could not say so.

(7) The relief ultimately sought was one or more of the following - a mandatory order compelling the Defendant to grant the Claimant asylum; a declaration that the Defendant had acted unreasonably or unlawfully; a mandatory order compelling the Defendant to make a decision on the Applicant’s outstanding asylum claim; an interim order compelling the Defendant to allow the Claimant to enter the United Kingdom pending interview and resolution of his asylum claim.

The Merits

[70]As the House of Lords made clear in the Prague case (above) the focus of the Refugee Convention is on the treatment of refugees within the receiving state, and it is directed to those who are within the receiving state. Hence the protection obligations imposed by the Convention upon contracting states concern the status and civil rights to be afforded to applicants and refugees who are within the contracting states – see e.g. Lord Bingham at [15]-[17].

[71]At [53] Lord Hope said:

“….It is also to be noted that rule 334 [as then drafted], which provides for the granting of asylum, adopts the language of the 1951 Convention without any modification or enlargement. The Secretary of State must be satisfied, amongst other things, that the applicant is in the United Kingdom, or has arrived at a port of entry in the United Kingdom, and that he is a refugee as defined by the Convention…..”

[72]In September 2012 the combination of the Convention, the Immigration Rules and s.2 of the Asylum and Immigration Act 1993 provided (and still does today) a coherent framework in relation to asylum applications in which, amongst other things:(1) An applicant had to be at a port of entry to the United Kingdom, or in the United Kingdom, in order to be able to make an application.

(2) An applicant had to make a request to be recognised as a refugee under the Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from or required to leave the United Kingdom (paragraph 327)

(3) In furtherance of his application, the applicant had to provide specified materials, including identity and travel documents, to the Defendant (see today paragraph 339HA onwards and, in particular, paragraph 339I(iii)).

(4) The Defendant had to ensure that a decision was made as soon as possible (paragraph 333A) and that a written decision was given in a reasonable time (paragraph 333).

(5) In the meanwhile, there were restrictions on what could be done by way of restricting the applicant’s movements within the United Kingdom, or expelling him, and a prohibition on returning him (Articles 31-33).

(6) An application could be withdrawn either explicitly or impliedly, and thus consideration of it discontinued (paragraph 333C).

(7) In deciding whether or not to grant asylum the Defendant had to consider whether the five criteria set out in paragraph 334 were met, and if the application did not meet them (or any of them) it would be refused – with the reasons in fact and law being stated in the decision (paragraph 336).

[73]There is an obvious potential inconsistency between applying for the protection of a country (as part of which travel and identity documents must be surrendered) and travelling away from that country during the course of the application. Hence, no doubt, the recognition by Collins J in the FH case (above) that permission was required to travel outside the United Kingdom even for short periods (the example cited was a visit to Mecca before the applicant’s death) so as to avoid affecting the validity of the application via implied withdrawal.

[74]Against that background, and whilst an applicant had to be at a port of entry or in the United Kingdom to make an asylum application in the first place, it seems to me that, truly construed, both on its plain wording and in the broad context set out immediately above, paragraph 334(i) clearly and obviously required the Defendant, at the time of considering a decision on an asylum application, to be satisfied that the applicant was then in the United Kingdom, or had then arrived at a port in the United Kingdom. I can see nothing inconsistent with that conclusion in the content of the Directives and other materials set out or summarised in [47]-[65] above, nor in Dublin II.

[75]Clearly, when the Defendant came to consider her decision in relation to the Claimant’s application in September 2012, the Claimant was not then in the United Kingdom, or at a port of entry in the United Kingdom,

[76]When he had exceptional leave to remain, the Claimant (whether using his original passport or a Certificate of Travel) was permitted by the Defendant to travel abroad for relatively short periods. That was done in the exercise of the Defendant’s discretion, and thus raised no question of implied withdrawal of the Claimant’s asylum application.

[77]However, the Claimant’s departure on 24 July 2012 was very different. Although he still had exceptional leave to remain, his original passport had expired, and he had no Certificate of Travel. Unknown to the Defendant, he had acquired two other passports (from Uganda and Mali), and left this country (using the Ugandan passport) without notice, and was still abroad when his exceptional leave to remain expired on 9 August 2012.

[78]Whilst, from the Claimant’s perspective, the delays (which I am very sorry to have added to) and changes of decision must have been very frustrating, I reject the contention that he was constructively forced to leave this country. He clearly chose to obtain the two passports and not to reveal his possession of them; to leave without notice for his own reasons; to use the Ugandan passport to do so; and not to try to return before his exceptional leave to remain had expired. Such conduct was clearly capable of being treated, under paragraph 333C, as being an implied withdrawal of his application.

[79]Nor, in the circumstances overall, was it irrational, unreasonable or otherwise unlawful for the Defendant to decline to act, in the exercise of her discretion, outside the Immigration Rules; nor, in my view, has the Defendant sought to benefit inappropriately from her past conduct; and nor, for the reason argued on her behalf, do I see any merit in the argument that the Defendant was inappropriately seeking to justify the refusal on the basis of other aspects of paragraph 334.

[80]Whereas paragraph 336 provided that an application that did not meet the criteria in paragraph 334 (as the Claimant’s did not) would be refused with reasons provided in writing, the letter written to the Claimant on the Defendant’s behalf on 21 September 2012 spoke in terms of the Defendant not being in a position to take forward the Claimant’s claim for asylum and that, because of the Claimant’s actions, a further decision could not be made.

[81]Such language was more akin to the operation of paragraph 333C, which although available, was not specified in the letter. Nor is there any evidence before me that the Claimant’s asylum file was marked to show that the application had been withdrawn and consideration of it had been discontinued.

[82]However, it was, in effect, a decision that the Claimant’s absence from the United Kingdom, or at a port of entry into the United Kingdom, as required by paragraph 334(i), meant that the Claimant’s application necessarily failed, and that reason has been extensively explored in this claim and found, in my view, to be undoubtedly correct. Accordingly, it is not appropriate to order the Defendant to make the decision again, more formally.

Conclusion

[83]In the result, essentially for the reasons advanced on behalf of the Defendant, I reject the two broad arguments advanced on behalf of the Claimant, and dismiss the claim.

[84]I invite counsel to agree a draft Order, and would propose (unless the parties wish for a hearing) that any consequential matters, and in particular any application in relation to costs, be dealt with administratively.