OB (Out of country appeal) Somalia [2005] UKIAT 00056	

IMMIGRATION APPEAL TRIBUNAL

Date:  18 January 2005
Date Determination notified:
	.28th February 2005

Before:

The Honourable Mr Justice Ouseley (President)
Mr H J E Latter(Vice President)
Miss B Mensah (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

Appearances:	
For the Appellant:	Mr R Toal, instructed by Wilson & Co
For the Respondent:	Mr T Eicke, instructed by Treasury Solicitor

DETERMINATION AND REASONS

1.	This is an appeal from the determination of an Adjudicator, Mr B Watkins CMG, promulgated on 29 March 2004.  It had given rise to unusual arguments about rights of appeal.

2.	The Appellants are a mother and her daughter, born in October 1994, who claim to be Somali nationals.  They arrived in the United Kingdom from Germany on 25 March 1998.  The mother claimed asylum and was granted temporary admission.  Germany agreed on request to accept responsibility under the Dublin Convention in July 1998 for the substantive determination of the claim.  On 30 July 1998, the Secretary of State issued a certificate under section 2 of the Asylum and Immigration Act 1996 stating that Germany was a safe third country to which the Appellants could be sent without breach of the Refugee Convention and which would process the asylum application substantively.  He also refused leave to enter and set removal directions for Germany.

3.	Judicial Review was sought of that certificate and the hearing of the application was stayed pending the decision in the case of Adan & Aitsegur v SSHD.  The House of Lords concluded on 19 December 2000, [2001] Imm AR 253, that Germany was not a safe third country because it did not at that time recognise that persecution by non-state agents came within the scope of the Refugee Convention.  It upheld the decision of the Court of Appeal in September 1999, which quashed on Judicial Review the certificate that Germany was a safe third country.

4.	On 5 December 2001, the Secretary of State withdrew the certificate in this case and issued a fresh certificate under section 11 of the Immigration and Asylum Act 1999, which from 2 October 2000 had reversed the decision of the Court of Appeal, and in effect that of the House of Lords.  The letter of 5 December 2001 repeated much of what was in the 30 July 1998 letter, but relating it now to the recent statutory change, and the new certificate provisions.  

5.	On 15 January 2002, the application for Judicial Review of the 30 July 1998 certificate was withdrawn.  The Secretary of State had tried to persuade the Appellant to withdraw that application on the ground that she did not fall within the scope of Adan anyway because she was not Somali but Kenyan.  He explained in a letter of 31 July 2001 that he had been satisfied beyond all reasonable doubt that he had established the true identity and nationality of the Appellant, saying that “she is the rightful holder of the Kenyan passport which she attempted to destroy to conceal her true nationality and identity”.

6.	He had made enquiries of the passport authorities in Kenya, which confirmed that she was recognised as a Kenyan citizen by the Kenyan authorities.  She was an indigenous Kenyan national, and in support of her application for a Kenyan passport had produced birth certificates for parents and grandparents, recognised by the authorities as being Kenyan nationals.  The Secretary of State concluded that the Judicial Review application was “founded upon a deliberate and sustained deception as to her true identity and nationality”.  The claim for asylum would be properly dealt with in Germany.  A wasted costs order was threatened.

7.	On 30 January 2002, the Appellant claimed that removal would breach her human rights, but in March 2002 the Secretary of State certified that allegation as manifestly unfounded pursuant to section 72(2)(a) of the Immigration and Asylum Act 1999.  In April 2002, a second application for Judicial Review was launched, this time in respect of the manifestly unfounded certificate.  This application for permission was dismissed on oral renewal by Crane J on 15 January 2003.

8.	On 23 May 2003, shortly after fresh removal directions were given, the Appellants were removed to Germany and on the next day lodged an appeal.  We were told that they remain in Germany, having been granted humanitarian protection there as Somalis. 

9.	No specific statutory provision was referred to in the grounds of appeal which related to the asserted breach of Article 3 and Article 8.  The grounds contended that the Appellants were Somali Nationals.  They were at risk of removal to Somalia, directly or indirectly.  They had lived in the United Kingdom with the rather younger sister of the adult Appellant and removal of the Appellants was a disproportionate interference with the family life which they had established with her since her arrival in the United Kingdom in December 2001.  (She had been granted asylum in November 2002 as a Somali.  In her statement in support of her application of November 2002, the sister had said that she did not really know her age but she was then probably between sixteen and twenty.  In January 2003, the Secretary of State said that he intended to review the decision.)

10.	The Adjudicator held that the withdrawal of the certificate, issued in respect of the 1998 decision under the 1996 Act, had the effect of reinstating the right of appeal under section 13 of the Immigration Act 1971 against the refusal of leave to enter.  The new certificate issued under section 11 of the 1999 Act continued to have the same effect on the section 13 appeal.  The pre-conditions in section 11(2)(a) were met.  There was no section 13 appeal before him.

11.	The appeal under section 71 of the 1999 Act against the certificate issued under section 11 was not a valid appeal because the conditions laid on such an appeal were not met.  The asserted appeal under section 65 of the 1999 Act on human rights grounds could not be brought because the statement of 2 March 2002 by the Secretary of State, that Germany was the responsible country for the purposes of the Dublin Convention, did not generate appeal rights because it was not a refusal of leave to enter.  Even if there were an appeal before him, the claim had been certified as manifestly unfounded and that certificate had been upheld on Judicial Review;  there was nothing in the fresh evidence which he heard which undermined the judge’s conclusions.  Nothing showed that the Article 8 claim made the removal decision disproportionate.

12.	The Adjudicator also said that it was not for him to determine nationality and that he had approached the issues as if the Appellant were Somali as she claimed.

13.	The submissions before us on behalf of the Secretary of State took a different form from those addressed to the Adjudicator.  Mr Eicke accepted that the Adjudicator had erred in holding that there was no section 13 appeal before him;  those appeal rights were not excluded by the certificate after its withdrawal nor by the 1999 Act certificate.  There was an out of country appeal under section 65.  Notwithstanding those errors, which the Secretary of State’s own submissions to the Adjudicator had encouraged, the appeal should still be dismissed on its lack of merits.

14.	It is worth briefly setting out the reasons for that change of view.  The Secretary of State had power to withdraw the certificate issued under section 2 of the 1996 Act at the stage when he did.  The certificate did not have to be overturned on appeal under section 3(1)(b) of the 1996 Act in order to lose its effect in depriving the Appellant of her right to appeal.  Her appeal was in time because time did not start to run until she had left the country.  The right of appeal under section 13, notwithstanding its repeal and replacement by new appeal provisions in the 1999 Act, had been maintained in respect of decisions to refuse leave to enter before 2 October 2000, by the 6th Commencement Order to the 1999 Act.  The 1999 Act certificate could only relate to decisions under that Act and did not restrict appeal rights under the 1971 Act.  She was exercising her rights to an out of country appeal under section 65 against the decision of 2 March 2002 which “related to” her entitlement to enter or remain in the United Kingdom.

15.	With the issues thus narrowed, we turn to the submissions of Mr Toal for the Appellant, and first to the submissions concerning section 13.

16.	An appeal could be brought under section 13 against the decision to refuse leave to enter on the grounds set out in section 19 of the 1971 Act:

“13(1)	Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal.

 (3) 	… and a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit.

19(1)	Subjection to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to himself under this Part of this Act-
(a)	shall allow the appeal if he considers-
(i)	that the decision or action against which the appeal is brought was not in accordance with the law or with any immigrations rules applicable to the case;  or
(ii)	where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently;  and
(b)	in any other case, shall dismiss the appeal.”

17.	The 9 August 1998 decision was not in accordance with the law.  At that time, the law was that later found by the Court of Appeal in Adan and Aitsegur; Germany was not a country which could be certified as safe because it would at that time have sent the Appellant back to Somalia.  Mr Toal emphasised that the task of the Adjudicator was to say whether or not the decision appealed against “was” in accordance with the law and not to examine whether it would now be in accordance with the law.  The change made by section 11 of the 1999 Act, reversing the effect of that decision, only took effect from the date when that section came into force, 2 October 2000.  “Henceforth”, as Simon Brown LJ said in R (Ibrahim) v SSHD [2001] EWCA Civ 519, EU member states were deemed to be safe.  There was no retrospective provision for earlier decisions.

18.	Mr Toal draw support from R v SSHD ex parte Bugdaycay [1987] AC 514 and R v SSHD ex part Sivakumaran [1988] 1 AC 958 which he said held that the Convention had “for all practical purposes” been incorporated into United Kingdom law;  and so decisions which breached it were in 1998 “not in accordance with the law”.  The Immigration Rules in 1987 then provided that leave to enter would not be refused if removal would be contrary to the Convention.  The remedy was by way of Judicial Review.

19.	The Secretary of State should also have exercised his discretion under the Immigration Rules, paragraph 345, differently, for the same reason:  to avoid a breach of the Refugee Convention.  There was also a discretion argument under that paragraph pursued in connection with the human rights appeal.  We deal with it later.

20.	Mr Eicke argued that section 13 did not help the Appellant.  Germany is a safe third country, having granted humanitarian protection.  The Secretary of State’s decision of August 1998 was superseded by his decision of 5 December 2001 taken under the 1999 Act, and it was that decision which was the effective decision behind removal in May 2003.  No appeal had been brought against the 1998 decision because of the certificate, and the certificate was not withdrawn until December 2001 after section 11 of the 1999 Act had come into force in October 2000.  The Judicial Review application had not led to the certificate being quashed, and in its turn had been withdrawn.  That left the decision 2001 decision as the operative decision.

21.	Mr Toal responded that that was to misunderstand the effect of the withdrawal of the 1996 Act certificate and the effect of the December 2001 decision.  The withdrawal of the certificate left intact the appeal rights under section 13.  There was no fresh decision to refuse leave to enter, but simply a new certificate in respect of the 1998 decision, which deprived the Appellant of protection against removal under section 15.  The operative decision remained the 1998 decision.

22.	Mr Eicke also submitted that Mr Toal was wrong about whether the appeal grounds under section 19 of the 1971 Act enabled it be said on appeal that a decision to refuse leave to enter was contrary to law or in breach of the Immigration Rules, when what was relied on was a breach of the Refugee Convention.  There had been no automatic incorporation of the Convention.  Appeal rights had been introduced by legislation in 1993 and maintained in subsequent statutes.

23.	The Tribunal raised the effect of Schedule 2 to the Asylum and Immigration Appeals Act 1993 on the scope of the appeal under section 13.  Schedule 2, paragraph 1, provides:

“No appeal may be brought under Part II of the 1971 Act on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act.”

24.	Paragraph 4 provides that for the purpose of appeals under section 19 of the 1971 Act, section 8 of the 1993 Act has effect as if it were within Part II of the 1971 Act.
25.	
Section 8(1) of the 1993 Act provides:

“A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the Convention.”

26.	Subsequent provisions of section 8 deal with other decisions eg refusal to vary leave, deportation decisions and appeals against them on the grounds that removal in consequence would be in breach of the Refugee Convention.

27.	Mr Toal, in later written submissions which we invited, said that this provision had no application.  The section 13 appeal was not brought on the grounds to which section 8 of the 1993 Act referred, even though the section 13 ground of appeal, that the decision “was not in accordance with the law” was that the refusal of leave to enter was in breach of the Refugee Convention.  Section 8 by contrast was said to be prospective:  the appeal ground was that removal “would be” contrary to the Convention.

28.	The section 13 ground of appeal that the discretion in paragraph 345 of the Immigration Rules ought to have been exercised differently also relied on the Refugee Convention:  the discretion should have been exercised differently so as to avoid a decision inconsistent with it.

29.	We reject Mr Toal’s arguments on section 13.  First, section 8 and Schedule 2 to the 1993 Act preclude a section 13 or 19 appeal on Refugee Convention grounds.  Section 13 of the 1971 Act sets out the decision which is relevant here, refusal of leave to enter.  It is appealable on the grounds set out in section 19.

30.	It is clear that the only appeal grounds asserted under section 19 are that removal to Germany in consequence of the refusal of leave to enter would be a breach of the Refugee Convention.  Mr Toal clutches at straws when suggesting that his ground is that the decision to refuse leave “was” not in accordance with law, given that he accepted that the argument that the consequential removal “would” involve a breach of the Convention was precluded by the 1993 Act.  The decisions could only be said to be not in accordance with  law because they would involve a breach of Article 33(1) when given effect.  The distinction drawn by Mr Toal is non-existent.

31.	The 1993 Act in section 8 was the first to introduce general in-country rights of appeal in relation to the Refugee Convention;  it expressly excluded such grounds from the general appeal grounds, “not in accordance with the law” or  breach of Immigration Rules.  This would have been pointless were Mr Toal correct to distinguish between a decision (section 19 of the 1971 Act) which “was” not in accordance with the law ie the Convention, and a removal in consequence which “would” breach the Convention (section 8 of the 1993 Act and its successors).  The former always precedes the latter.  The decision to refuse leave to enter only becomes a breach of the Refugee Convention when removal is contemplated.  United Kingdom law has generally given effect to the Refugee Convention not by way of a status appeal but by restrictions on removal.

32.	An alternative analysis to the same end is that the 1993 Act in effect introduced “restrictions” on the grounds of appeal available under section 19, and section 19 requires to be read, by its own terms, as subject to those restrictions.  Such restrictions on the scope of the “not in accordance with the law” jurisdiction, which mean that Refugee Convention points have to be taken under specific statutory provisions concerning the Convention, appear in subsequent immigration and asylum Acts.

33.	Additionally, the position as to breach and risk of refoulement is judged within the appeal system not at the date of the Secretary of State’s decision but, on the error of law jurisdiction as at the date of the Adjudicator’s determination.  By that time Germany was as a matter of fact a safe third country regardless of the deeming provisions in the 1999 Act.  There has been no contrary suggestion.  If the matter is before us because of the admitted errors of law which the Adjudicator made and which seem to us to be material, there is no doubt but that Germany is a safe country as a matter of fact.

34.	The same points apply to this part of the discretion argument under paragraph 345 of the Immigration Rules.  The basis upon which it was said that the discretion to consider the asylum claim substantively had been wrongly exercised was simply that Germany was not a safe country, and so removal would likewise breach the Convention.  This is very much the same point and is likewise excluded by Schedule 2 to the 1993 Act.

35.	We do not entirely accept, however, Mr Eicke’s argument that the decision of 1998 was superseded by the December 2001 decision.  It seems to us that the refusal of leave to enter in 1998 was maintained and not re-examined in December 2001.  There was a new decision to remove the Appellant on safe third country grounds, which was certified, and fresh directions were later issued.  The two together operated as the basis of removal.  The withdrawal of the certificate leads to the revival of the section 13 right of appeal for what that was worth.  Its worth depended on the scope of the appeal provisions which do not cover the territory which Mr Toal contends for.

36.	For the reasons which we have given the first point in this appeal is decided against Mr Toal.

37.	Mr Toal’s second set of submissions related to the conclusions reached in the human rights appeal.  He also brought in the way in which the discretion under the Immigration Rules, paragraph 345, had been exercised in respect of the family of the Appellants.

38.	The decision at issue is that of 2 March 2002.  The Secretary of State said that the Appellant could be expected to live fully independently of her sister, that there would be some interference with the Appellant’s  family life but that the mother and daughter would be able to establish a family life for themselves in Germany, and that removal would be proportionate having regard to the interests of immigration control.  The human rights claim was certified as manifestly unfounded.

39.	Part of the grounds of appeal related to the way in which the Adjudicator dealt with the conclusions of Crane J in the Judicial Review of that certification.  In January 2003, he dismissed the renewed oral application for permission to apply for Judicial Review.  He said that the question of where the Appellant and her sister came from was irrelevant;  the Secretary of State had treated them as sisters.  No significant degree of dependency between the two had been demonstrated so as to give rise to an arguable case that the Secretary of State’s policy, of dealing substantively with some safe third country cases where family ties were involved, would be breached if the Appellants were removed to Germany.  There was a dependency but it fell short of showing that the case would be a disproportionate exercise of the powers of immigration control.

40.	The day before that hearing, the Secretary of State had sent a further letter to the Appellants dealing with the Article 8 policy point.  It set out the policy upon which Mr Toal relied before us in relation to the Rules;  the relevant parts are as follows:
 
“The policy on the exercise of discretion in safe third country cases where family ties to the United Kingdom are claimed is that potential third country cases would normally have their asylum claims considered substantively in this country where:

(a)	an applicant’s spouse is in the United Kingdom;
(b)	the applicant is an unmarried minor and a parent is in the United Kingdom;
(c)	the applicant has an unmarried minor child in the United Kingdom.
…

Discretion may be exercised according to the merits of the case where:
…

(f)	the family link was not one which would normally be considered but there was clear evidence that the applicant was wholly or mainly dependent on the relative in the United Kingdom and that there was an absence of similar support elsewhere.

I would expect cases falling into this latter category (f) to be rare.

Factors which might influence the exercise of discretion in these cases, such as language, cultural links or the number of family members in the United Kingdom may have a bearing, but there would need to be a compelling combination of such factors to ensure the exercise of discretion in favour of an appellant.

Cases citing family ties which would not normally be considered and which did not display any of the features, which engaged the exercise of discretion, would not normally be considered substantively.  This means that a brother, who was not dependent on his sibling(s) would not normally have his case considered here, no matter how strong his cultural or linguistic links with the United Kingdom.

The intention of the policy is to re-unite members of an existing family unit who, through circumstances outside of their control, had become fragmented.  However, I emphasise that where the relationship did not exist prior to the person’s arrival in the United Kingdom, the policy would only be applied in the most exceptionally compelling cases.”

41.	The letter pointed out that the claim did not engage any provision other than (f), and that there was no evidence that the Appellant was wholly or mainly dependent on her sister in the United Kingdom.

42.	Before the Adjudicator it had been accepted that what Crane J had to say was of persuasive authority, but with differing degrees of force and enthusiasm depending on the side taken.  Mr Toal had emphasised that the situation had changed at least to the extent that there was now new evidence as to the strength of the relationship between the two Appellants and the sister/aunt.  There was a social worker’s letter. This was summarised as follows by the Adjudicator:

“In summary, they are that the appellant and her sister in the United Kingdom had an interdependent, reciprocal relationship, that the removal of the appellant from the United Kingdom would seriously damage family life, that the family life in the UK as then enjoyed was particularly important to the appellant’s 9 year old daughter (the second appellant), that the appellant would not cope well in Germany and was likely to become more depressed and to break down, that the mental health of both the appellant and her sister had been adversely affected by past events and that they had symptoms of post-traumatic stress disorder.”

43.	The Adjudicator continued:

“Like the learned judge, I accept that the sisters did rely on each other.  There is no medical evidence before me, however, that either the appellant or her sister in the United Kingdom or the 9 year old second appellant have in fact suffered mental stress of such an order as to cause a breakdown, moreover, even if there were, there is no evidence before me that mental health treatment and medication which might be necessary is not available in Germany and it is certainly available to the sister, should it be necessary, in the United Kingdom.  As to the post-traumatic stress disorder, with great respect to Miss Cohen, she is not medically qualified.  As to the child appellant, as Miss Anderson submitted, there is nothing before me from her or to show her rights have been infringed.  I have to treat Miss Cohen’s report with caution.  Nothing in the report satisfies me that the conditions which were necessary for the learned judge to decide as he did on judicial review have subsequently been undermined.”

44.	He concluded that the appeal continued to be manifestly unfounded and that even if there were anything in it the decision was proportionate.  He said that he did not need to decide whether the Appellants were Somali but that he had decided the case on the basis that they were.

45.	Mr Toal’s first submission was that the Adjudicator had failed to exercise his own discretion and judgment when considering the Article 8 claim and had adopted a stance which was too narrow, in that he examined only whether there had been anything to upset the findings of Crane J.  It was incumbent on the Adjudicator to make his own assessment of all the relevant factors.  Mr Toal said that the case had been put differently to the Adjudicator from the way it had been put to Crane J.  There had been the social worker’s letter and the nationality issue, so-called, ie the impact of the background to the Appellants’ family life here, had not been before the judge.  He referred to two cases.

46.	M v SSHD [2003] EWCA Civ 146 concerned a deportation order made on the grounds that it would be conducive to the public good but which was based on a criminal conviction where the recommendation for deportation had been set aside on appeal.  The Court of Appeal rejected the argument that there was a presumption against deportation unless circumstances had changed or there was fresh evidence.  The duty on the Secretary of State was to consider the prior reasoning of the CACD and to say what he made of it and what his reasons were for disagreeing with it if he did.

47.	This need for independent evaluation of the facts was reinforced by the decision in Djebbar v SSHD [2004] EWCA Civ 804 which considered the Devaseelan guidelines.  Mr Toal relied on paragraph 30 where it was said that perhaps the most important feature of the guidance was that the fundamental obligation of every Adjudicator independently to decide each new application on its own individual merits was preserved.

48.	We do not take issue with what Mr Toal set out as the principles, and he accepted that the decision of a High Court Judge on an application for permission to apply for Judicial Review of a certificate that a claim was manifestly unfounded, was capable of being persuasive.  But we can see nothing in the Adjudicator’s approach which suggests that he regarded himself as bound to follow what had been said.  He accepted the findings as to dependency because he agreed with them and he considered the effect of the new evidence and gave his own reason for rejecting it as of little weight.  He took account of the new evidence in concluding that there was a relationship between the three.  Although he misquotes what Crane J says about family life, because he gives the impression that there was an explicit finding as to family life when there was none, it is clear that he thought it implicit in what Crane J says, as is clearly right.  Although there was scope for debate about whether or not the Adjudicator had made any findings about the existence of family life, it was conceded by Mr Toal that he had reached the conclusion that there was family life in existence.  He probably concluded that there was a family life of a sort because they were now living together and there was an emotional dependency.  The Secretary of State had done so.  We ourselves would so conclude had it been for us.  He then agreed with the analysis of Crane J as to proportionality.  The Adjudicator may well have taken the judgment of Crane J as a starting point and have then looked to see if there was anything which now undermined that decision.  There is nothing in the decisions cited to us which suggests that that would have been wrong.

49.	The next limb of Mr Toal’s submissions was that the Adjudicator had failed to consider various factors relevant to the Appellants’ family life.  This argument took the form initially that the Adjudicator ought to have determined the nationality of the Appellant because, said Mr Toal, that would be critical to whether account was taken of various factors which went beyond the simple question of the relationship, which he accepted was there regardless of nationality.  In reality, Mr Toal accepted that it was not necessary to resolve nationality of itself;  what was necessary was to take into account the factors which made the relationship what it was.

50.	The relevant points which it was said had been ignored were the persecution of the Appellant in Somalia, the impact of the civil war on her family there, the murder of her mother, her consequential depression and PTSD, and therefore her greater dependence on the surviving members of her family in the United Kingdom who had a shared experience and to whom she would naturally look for greater emotional support than might be normal between adult siblings.  The impact of removal to Germany would be a greater interference than would often be the case.  These are points which are made in the social worker’s letter which was before the Adjudicator.

51.	We do not think that this submission is made out.  We cannot ignore the fact that the Adjudicator said that he was making the assumption that the Appellants were Somali.  It follows that his analysis is not of a family of Kenyan economic migrants but of those who have come from war-torn Somalia.  There is nothing in the substance of the determination and on p12 in particular to suggest that a different approach was in fact adopted.  He does not reject the social worker’s analysis on the basis that the claim is untrue.  He is plainly accepting the report as one about Somalis and not about Kenyans.

52.	There are, it is true, no positive findings about the sort of point which Mr Toal raises, which go to the strength of that family life or to the degree of interference with it which removal would entail for the Appellants.  We think that it is reasonably clear that the Adjudicator accepted the conclusions of the social worker’s report (p59 of the bundle).  Those conclusions take on board the points made by Mr Toal as to the significance of the background.

53.	The Adjudicator does not decide the issue of nationality as a distinct issue and he is right not to do so;  that is a matter for the substantive claim.  He does not have to decide it in order to take into account the factors upon which Mr Toal relied.  His refusal to decide the nationality issue is beside the point as to whether or not he took the family factors fully into account.  It is reasonably clear that he did.

54.	The real issue is as to the degree to which the interference is proportionate in the interests of immigration control.  We have set out the policy which is applied to asylum seekers in this context.  It is what Crane J relied on.  The Adjudicator considered proportionality, it is said, on the false basis of ignoring the factors prayed in aid by Mr Toal, but we have rejected that point.  The Secretary of State had written subsequent letters to the Appellants after he had been sent the social worker’s letter;  in March and April 2002 and then in January and May 2003 when he considered that letter he had maintained his view that removal to Germany was proportionate.  He specifically considered the mental health claims made by the Appellants.

55.	Mr Toal submitted that his decision could not be relied on as a sound decision as to proportionality because it had been informed by the irrelevant consideration that the Appellant was a Kenyan who was flouting the law and making a false asylum claim.  If it were relevant it could not be relied on until the truth or falsity of it had been established.  True it is that the letter from the Secretary of State dated 31 July 2001, which asks for the Judicial Review of the section 2 certificate to be withdrawn because the Appellant is not Somali at all, refers to those matters and gives them as part of the reason why the Appellant would be returned to Germany for substantive consideration of the claim.  However, the other letters, whilst not resiling from the point that the Appellant is a Kenyan, say that she is not being returned because of those views as to her nationality;  her nationality was irrelevant to that and that it would be for Germany to decide the issue as part of her claim.  It would of course undermine the assertion that the claim was manifestly unfounded if the Secretary of State proceeded on the basis that he could make an adverse credibility finding rather than take the case at face value.

56.	Even if the Adjudicator had failed to take into account the sort of points about the family background which Mr Toal raised before us, and it is therefore for us to take them into account for the first time, we do not regard the removal as close to disproportionate.  Whether proportionality is a matter for our judgment in those circumstances or whether the Adjudicator’s view, assuming no error in it, is to be upheld, and whether or not the issue is one to be tested by the reasonableness of the actual or potential range of views to which the Secretary of State lawfully could come, or by reference to the strong interests of immigration control to which exceptions will be rare, it was plainly not disproportionate to remove the Appellants.  They fall outside the scope of the policy which guides the way in which the Secretary of State says that he will deal generally with those whose removal to a safe third country for the substantive consideration of their asylum claim may engage Article 8.  There are no exceptional circumstances which dictate another conclusion.  The degree of interference with family life is comparatively slight.  The main relationship is between adult siblings who have not lived together for many years until they, apparently by chance, found each other in the United Kingdom.  There is a degree of emotional dependence which goes beyond that which adult siblings would normally experience because of the shared experiences and bereavements which would make them more dependant on each other.  This would not be uncommon among asylum seekers and their families and to which the statement of policy is directed.  It is not an intense one involving a carer for the mentally ill or other high degree dependency.  It is also one which is likely to end sooner rather than later as the lives of adults necessarily change as each sets up home with their own family.  The niece/aunt relationship is new, quite short and of value to both but has no exceptional quality to it.

57.	We do not accept Mr Toal’s point that because this case differs from that of Mahmood [2000] EWCA Civ 315, [2001] 1WLR 840, there is more reason to find removal disproportionate.  Of course, there is room under the Immigration Rules, paragraph 345, for the Secretary of State to set out a policy for the exercise of the discretion which he has done and that policy itself contains scope for further exceptional circumstances;  that can be distinguished from the position of an illegal entrant and failed asylum seeker who is seeking to stay.  But it is not a persuasive point at all.  The claim simply falls outside the Rules, outside the policy for discretionary cases and it exhibits no strong exceptional features;  it does not raise a category of case for which the Rules and policy exceptions have made no provision, which ought to be considered.  There is no other policy for this type of asylum claimant.

58.	It is not surprising that this claim was certified as manifestly unfounded, and we do not regard the arguments put forward by Mr Toal, as showing that the appeal should be allowed.  It is dismissed.  We report it because of the unusual arguments about section 13 and the unusual nature of an out of country appeal human rights appeal. 

MR JUSTICE OUSELEY
PRESIDENT