Immigration law

By Jane Coker, Coker Vis Partnership, London

Third country removalsR v Secretary of State for the Home Department, ex parte Santia Yogathas (2001) QBD Administrative Court (Mr Justice Richards) 25 May 2001 This was an application for judicial review against the decision of the Secretary of State for the Home Department to certify Santia Yogathas' claim for asylum and to remove him to Germany as a safe third country under section 2 of the Asylum and Immigration Act 1996.The central issue was whether the decision under complaint could withstand the House of Lords' decision in R v Secretary of State for the Home Department, ex parte (1) Adan (2) Aitseguer [2001] 2 WLR 143.

The decision predated the coming into force of the Immigration and Asylum Act 1999, which established a statutory regime under which Germany was a safe third country, and the Human Rights Act 1998.

The issue was whether, in the light of Adan, Mr Yogathas could lawfully be removed to Germany as a safe third country.

He submitted: German law in relation to non-state agents was defective; German law was defective in relation to organs of the state in that the actions of state agents were not always attributed to the state; German law in relation to internal flight was not in accordance with the Geneva Convention in that internal flight was not always considered and the German approach to internal flight placed a much higher burden on asylum seekers than the British approach.The application was dismissed.

Although this case deals with third country removals under the 1996 Act (holding that the statutory test was whether the home secretary was entitled to conclude that Germany would not send Mr Yogathas to Sri Lanka otherwise than in accordance with the convention.

Adan did not support the view that if a third country's interpretation of the convention was in any respect defective that necessarily precluded certification under section 2 (2)(c) of the 1996 Act), other findings of the court are relevant in terms of potential arguments under section 65 of the Immigration and Asylum Act 1999.

In particular it held: there was no material difference in approach between Germany and the UK in respect of actions by state agents; on the evidence, the home secretary had been entitled to conclude that Mr Yogathas would not be returned to Sri Lanka by Germany without consideration of the internal flight alternative; and, it was clear that there were differences between the UK approach and the German approach to the internal flight alternative - the question was not posed in the same way in both countries; in Germany the test of economic survival required more extreme social and/or economic difficulties in order to avoid a finding that the internal flight alternative applied; and, (c) Germany did not consider political and civil rights when determining the reasonableness of internal relocation.

Although it was held by the court that Germany's approach could not be said to be based on an incorrect view of the Refugee Convention, given the 1999 Act and that Germany is deemed to be 'safe', practitioners should now consider the potential arguments available under section 65 of the 1999 Act, particularly in relation to internal flight.

A real prospect of successR v Immigration Appeal Tribunal, ex parte Kolcak (2001) QBD Administrative Court (Mr Justice Stanley Burnton) 21 June 2001 This case involved a Turkish Kurd who had initially come to the UK in 1988, returned to Turkey, where he remained for seven years, then returned to the UK and claimed asylum.

The special adjudicator rejected the claim for asylum and the Immigration Appeal Tribunal (IAT) refused leave to appeal.Submissions on behalf of Mr Kolcak were that, in reaching her decision on credibility, the special adjudicator had failed to take into account certain matters and in addition had taken into account matters that were not before her.The main matters at issue were medical evidence and the special adjudicator's findings on this and the treatment of evidence of Mr Kolcak's relatives and neighbours.In an application for judicial review of the IAT decision, the court held that the test to be applied when the IAT considered the special adjudicator's decision was whether the applicant had a real prospect of success.

The Administrative Court not only had to look at the allegation of error but also assess the impact of that error.There were many cases where there was an error on behalf of the IAT but if that error was superficial it would not necessarily call for the quashing of their decision.

The court also held that similar principles applied to issues of fact.

It was not incumbent on the IAT to look at an issue of fact unless it was readily discernible, provided it was one which, if taken, would have a strong prospect of making the IAT grant an appeal.

When dealing with questions of fact the IAT had a duty to weigh up all the evidence, but there was a danger of too formulaic an approach; the decision had to be tailored to the material before the IAT to some extent.

In this case it had been wrong of the IAT to find that if the persons put forward by Mr Kolcak were relatives then it was a matter that would be material and affect credibility.

The question was whether it was a matter that had a reasonable prospect of success in making the IAT grant the appeal.

It did not.

The special adjudicator was entitled to deal with the matter before her as she did.

The IAT did err, but it was not sufficient to call for a quashing of the decision.Sufficiency of protectionCanaj v Secretary of State for the Home Department; Vallaj v Special Adjudicator (2001) CA (Lords Justice Simon Brown, Chadwick, Longmore) 24 May 2001This case was an appeal in judicial review proceedings against the Administrative Court's decision on 21 December 2000 whereby the certificate of the home secretary in the case of Vallaj (upheld by the special adjudicator) was 'manifestly unfounded' and was upheld.

Both appellants in this case were Kosovan Albanians.

Issues raised in the appeal were: that the court had to ask itself whether there was genuine protection available for an asylum seeker in an unsafe part of his land, even if he had no connection with that place, had never been there in the past and would not travel there in the future; that neither the United Nations' Interim Administration Mission in Kosovo nor KFOR (the internal security force for Kosovo) was providing the protection at the standard required by Horvath v Home Secretary [2000] 3 WLR 379 and, that the special adjudicator had failed to ask himself whether it was reasonable to expect the appellant to be able to avail himself of internal flight.

The Court of Appeal held:l Paragraph 91 of the United Nations High Commission for Refugees (UNHCR) Handbook postulated that a refugee's fear of persecution was in his part of the country.

It was expressly asked whether a refugee could find effective protection in another part of his country to which he could reasonably be expected to move.

Given that the appellant would be returned to an area protected by the United Nations' Interim Administration in Kosovo and KFOR, his appeal was dismissed.l Horvath involved a very different case from the present two when it discussed sufficiency of protection: it had been concerned with the persecution of Romany people by skinheads in Slovakia.l Whether there was persecution in the past was irrelevant to the sufficiency of protection in the present day, although it could be probative of a future risk of persecution.

The critical question was whether there was a serious risk of persecution on return.This case is a further indication of the difficulties faced by Kosovans arguing against return to any part of Kosovo, despite the current unstable situation, the lack of substantive infrastructure and the general problems.

But the potential for arguments under article 3 of the European Convention on Human Rights have yet to be explored in any detail before the courts.

Practitioners should examine closely the distinctions between persecution and inhuman and degrading treatment and how that relates to internal flight and the protection offered by KFOR.