Akpinar, R (on the application of) v Secretary Of State For Home Department

An asylum claimant’s entitlement to have a claim entertained does not alter the legal character of an otherwise unlawful presence. Removal or refoulement may be deferred while the claim is considered, but the claimant does not thereby become lawfully present.

A court should require an authority to secure an applicant’s return after removal only where return would provide a real form of legal recourse otherwise unavailable. The one-stop procedure creates no freestanding obligation to consider a claim raised late; applicants must advance their Geneva Convention and human-rights claims together.

The applicant, a Turkish Kurd, had previously claimed asylum in Germany. After entering the United Kingdom, she claimed to have returned to Turkey and suffered further persecution, but the Secretary of State concluded that she had remained in Germany and that Germany was responsible under the Dublin Convention.

Removal directions were made to Germany. Following a disputed assurance that removal had been cancelled, she was removed. Sullivan J refused an injunction requiring the Secretary of State to request her return, and Laws LJ refused permission to appeal on the papers. The applicant renewed her application, seeking permission to appeal and return to the United Kingdom to pursue further proceedings and a human-rights claim.

1. Permission refused. The application had no realistic prospect of success and there was no other special reason to grant permission.
2. The applicant’s presence in the United Kingdom remained unlawful if she had entered unlawfully. Her entitlement under domestic law and the Geneva Convention to have an asylum claim entertained did not change that legal character, although removal could not occur until the claim had been considered.
3. The Secretary of State’s conclusion that the applicant had not returned to Turkey was contestable, but it was supported by material from the German authorities and was a conclusion reasonably open to him. The court could not rationally unravel and reverse it on judicial review.
4. The court would require the Secretary of State to request an applicant’s return only if return would confer a real form of recourse otherwise denied. The applicant had already had the relevant opportunity in Germany, and the statutory procedures in the United Kingdom had been observed and twice reviewed by the Administrative Court.
5. Section 65 of the Immigration and Asylum Act 1999 could not provide an in-country appeal where a claim was certified as manifestly unfounded. Section 75 of the 1979 Act created no freestanding obligation; it formed part of the one-stop procedure requiring Geneva Convention and Strasbourg claims to be advanced together.
6. The court expressed serious concern about the apparent breach of the Home Office’s assurance that removal had been cancelled, and concern about evidence of detention and torture of some failed asylum seekers returned to Turkey. Those concerns did not alter the legal conclusion on the application.

• Queen’s Bench Division, Administrative Court: Hooper J refused the substantive judicial review application on 16 February 2001.
• Queen’s Bench Division, Administrative Court: Sullivan J refused an injunction requiring the Secretary of State to request the applicant’s return from Germany.
• Court of Appeal (Civil Division): Laws LJ refused permission on the papers. Sedley LJ refused the renewed application and permission to appeal.