Vilvarajah & Anor v Secretary of State for the Home Department

Refugee status and entitlement to asylum are separate questions. An immigration decision-maker must first assess whether an applicant is a refugee under the Convention test, and only then consider asylum. Article 33 applies a different threshold. Refugee status alone does not establish entitlement to asylum. For bail or temporary admission, deliberate deception in presenting forged documents as genuine and giving a false account may justify refusal. The mere possession of forged documents by a person who openly explains them as necessary to escape is materially different. Prolonged detention may support habeas corpus or bail if excessive, but length alone does not displace the relevant concerns.

Two Tamil applicants arrived in the United Kingdom on 11 June using forged passports, which they presented as genuine, and claiming to be tourists travelling to Canada. Their applications for entry were refused on 20 August. Judicial review was refused on 25 September. On 12 October, this court set aside the refusal of entry because the wrong refugee test had been applied, without deciding whether the applicants were refugees or entitled to asylum. While detained, they applied for bail. The central issues were the court’s jurisdiction, the significance of their deception, and whether the length of detention made bail appropriate.

The applications for bail were dismissed unanimously.

1. The Master of the Rolls clarified the effect of the court’s earlier decision. The applicable immigration scheme involved two stages. First, the Secretary of State had to determine whether an applicant was a refugee, applying the Convention test of a well-founded fear of persecution. Secondly, if the applicant was a refugee, the Secretary of State had to consider whether asylum should be granted. Refugee status did not itself confer entitlement to asylum. Article 33 involved a different threshold based on fear of death or loss of freedom.
2. Where a person was detained pending examination, paragraph 22 of the Second Schedule to the Immigration Act 1971 gave an adjudicator jurisdiction to entertain an application for bail. Although the original refusal of admission had removed that jurisdiction, the court’s decision setting aside the refusal technically restored it. The court nevertheless declined to dismiss the applications merely because another route to bail existed.
3. Where an adjudicator had no jurisdiction because admission had been refused, the court’s jurisdiction was exercised in the nature of judicial review of the Secretary of State’s decision not to grant bail or temporary admission pending departure. In an appropriate case, the court could grant bail. This could be useful because the Secretary of State, unlike the adjudicator, lacked power to impose sureties with temporary admission.
4. The Secretary of State was entitled in principle to regard deliberate deception as relevant. Presenting forged passports as genuine and claiming to be tourists created a legitimate concern that further deception might occur and that removal could become difficult. That was materially different from an asylum claimant openly disclosing possession of forged documents and explaining that they were necessary to escape. The decision was therefore not vitiated by an error of principle.
5. Excessive detention might support an application for habeas corpus or bail. However, the length of detention in this case did not override the considerations relied on by the Secretary of State. The applicants’ comparison with persons who had been granted bail did not establish inherent unfairness. The order was: applications dismissed, with legal aid taxation of the applicants’ costs.

• Court of Appeal (Civil Division): The court considered the applicants’ bail applications and dismissed them.
• Earlier proceedings: Applications for entry were refused on 20 August 1987. Judicial review was refused on 25 September 1987. On 12 October 1987, the original refusal of entry was set aside because the wrong refugee test had been applied, without a determination of refugee status or entitlement to asylum.