ASYLUM
APPLICATIONS IN JERSEY AND REMOVAL TO SAFE COUNTRIES
Steven Meiklejohn
This article
discusses the decision of the Royal Court in X v Minister for Home Affairs,[1] where the court dismissed the application
for judicial review by an applicant of the refusal to grant him asylum. The
particular novelty of the case was that the application for asylum had not been
subject to a “substantive consideration” by the Minister but was
effectively dismissed summarily by the Jersey Customs and Immigration Service
on the ground that the applicant could be removed to a safe country.
This
was the first judicial review of an asylum matter before the Royal Court.
Coincidentally, there was an unrelated asylum case also heard later in 2019 (A v Minister for Home Affairs[2]).
Framework
UN Convention and Protocol
Relating to the Status of Refugees (“the Refugee Convention”)
1 The UK’s
ratification of the 1951 Refugee Convention
was extended to the Channel Islands on 11 March 1954,[4]
and the ratification of the 1967 Protocol was extended to Jersey on 20 February
1996.[5]
2 Article 33(1) of the
Refugee Convention provides that—
“No Contracting State shall expel or return (‘refouler’)
a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.”
3 A “refugee”
is defined in Article 1 of the Refugee Convention, as amended by the Protocol,
to mean any person who:
“. . . owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside the country
of his former habitual residence . . . is unable or, owing to such
fear, is unwilling to return to it.”
4 Often the mistake made
by members of the public, politicians and the media is to conflate the terms
“refugee” and “asylum seeker.” The latter is a person
who is seeking international protection with their claim not yet decided upon;
the former will have been an asylum seeker but after a successful application
becomes recognised as a refugee.
European Convention
on Human Rights (“the ECHR”)
5 The ECHR provides, inter alia, that “Everyone’s
right to life shall be protected by law. No one shall be deprived of his life
intentionally . . .” (art 2) and “No one shall be
subjected to inhumane or degrading treatment or punishment” (art 3).
6 The ECHR (the UK’s
ratification of which has also been extended to Jersey) is implemented into
domestic law through the Human Rights (Jersey) Law 2000. That Law provides, at art 7, that it is unlawful for a public
authority to act in a way which is incompatible with an ECHR right, and
“public authority” not only covers Ministers and officers[6] but
also the courts and tribunals of the Island.
7 The central argument in
the X case was whether the return of
the applicant to the European jurisdiction in which he resided, prior to
arriving in Jersey, would constitute a violation of art 3 ECHR.
Immigration (Jersey) Order 1993 (“the
Immigration Order”)
8 To complete the
introductory notes on the framework, it is also necessary to highlight the
Immigration Order and the Jersey Immigration Rules. The Immigration Order
extends to Jersey, with amendments, by way of Order in Council, the Immigration
Act 1971 of the UK and other UK immigration statutes.
9 Section 3(1) of the
Immigration Act 1971, as extended to Jersey by the Immigration Order, provides
that:
“3.-(1) Except as otherwise provided by or under this Act, where a
person is not <a British citizen> –
(a) he shall not enter
the [Bailiwick of Jersey] unless given leave to do so in accordance with this
Act;
(b) he may be given
leave to enter the [Bailiwick of Jersey] (or, when already there, leave to
remain in the [Bailiwick of Jersey]) either for a limited or for an indefinite
period;
(c) if he is given a
limited leave to enter or remain in the [Bailiwick of Jersey], it may be given
subject to conditions restricting his employment or occupation in the
[Bailiwick of Jersey], or requiring him to register [as provided under section
4(3) below], or both.”
10 The enabling power to
make rules on immigration is provided under s 1(4A) of the Act, as
extended:
“The [Minister[7]]
shall give directions as to the practice to be followed in the administration
of this Act for regulating the entry into and stay in the Bailiwick of persons
not having the right of abode and such directions shall include provision for
admitting (in such cases and subject to such restrictions as may be provided by
the directions and subject or not to conditions as to length of stay or
otherwise) persons coming for the purpose of taking employment, or for the
purposes of study, or as visitors, or as dependants of persons lawfully in or
entering the Bailiwick.”
Jersey Immigration Rules (“the Rules”)
11 Using the power under s 1(4A),
successive Lieutenants-Governor and since 2017, successive Ministers for Home
Affairs, have from time to time given directions by way of Immigration Rules.
The Rules are not promulgated in the same manner as secondary legislation (i.e. they are not laid before the States
or subject to the formalities of the Subordinate Legislation (Jersey) Law 1960
or the Official Publications (Jersey) Law 1960), but they are published and are
available on www.gov.je.
12 The Rules provide a
comprehensive framework for all immigration matters, including asylum which is
governed by Part 11 of the Rules. This sets out the process for asylum
applications, the factors to be considered and provides that decisions in
relation to asylum applications ultimately rest with the Minister. In
particular, r 344 sets out that if the Minister is satisfied that refusing
an asylum application would result in the applicant being removed, in breach of
the Refugee 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, then the applicant will be granted
refugee status.
13 There is an exception
to the matter and that is found in r 345 which is as follows:
“1) If the
Minister or, in the case of a person arriving in Jersey, an Immigration Officer
not below the rank of Senior Immigration Officer, is satisfied that there is a
safe country to which an asylum applicant can be sent, his application will
normally be refused without substantive consideration of his claim to refugee
status.
2) A safe
country is one in which the life or freedom of the asylum applicant would not
be threatened (within the meaning of Article 33 of the [Refugee] Convention)
and the government of which would not send the applicant elsewhere in a manner
contrary to the principles of the Convention.
3) An
asylum applicant shall not be removed without substantive consideration of his
claim unless—
i. the
asylum applicant has not arrived in Jersey directly from the country in which
he claims to fear persecution and has had an opportunity at the border or
within the territory of a third country to make contact with that country’s
authorities in order to seek their protection, or
ii. there
is other clear evidence of his admissibility to a third country.
Provided
that [if] a case meets the above criteria, there is no obligation to consult
the authorities of the third country before the removal of an asylum applicant.”[10]
14 Therefore, it is
permissible under the Rules for a person of the rank of Senior Immigration
Officer or above to make a summary assessment of an asylum application and to
refuse it if there is a safe country to which the applicant can be sent, and
thus avoid a substantive consideration and determination by the Minister. It
was this very Rule which was engaged in the X
case.
15 What is a “safe
country” then? Rule 345(2) above defines it in simple terms but no list
is kept locally, and therefore the Jersey Customs and Immigration Service (“JCIS”) must consider each jurisdiction on a case-by-case basis.
Assistance can also be gleaned from non-binding sources such as the Asylum and
Immigration (Treatment of Claimants, etc) Act 2004 which lists countries which
may be considered safe, and the Protocol No 24 to the Treaty on the Functioning
of the European Union which provides that EU Member States shall be regarded as
constituting safe countries for all legal and practical purposes in relation to
asylum matters. There is also Home Office guidance on the Dublin III Regulation[11]
which notes that any jurisdiction listed in the Schedule to the 2004 Act may be
considered safe. Indeed, enquiries made with the Home Office in the X case confirmed that it was the view of
HM Government that the particular European jurisdiction was safe.
Background
16 The applicant, Mr X,
was originally from Syria. His evidence was that he had undergone arrest,
detention, interrogation and extreme torture by the military in Syria. After
leaving Syria through Turkey and Egypt, he eventually arrived in Europe and
sought asylum in a European jurisdiction. That jurisdiction cannot be named for
safety reasons and was anonymised in the Royal Court’s judgments.
17 Mr X was successful in
his asylum application in that European jurisdiction, but by the time he had
arrived in Jersey, his residence permit had expired and he had written to the
authorities stating that he did not want his residence/refugee status renewed
and did not wish to return there. JCIS made enquiries with the authorities of
the European jurisdiction, who confirmed that they would nonetheless accept
responsibility for him.
18 On 5 August 2018, Mr X
arrived at Anne Port on a small dinghy, having made most of the journey on a
larger boat from, he said, Antwerp. He then travelled into St. Helier to
present himself at States of Jersey Police Headquarters to claim asylum. He was
transferred to JCIS at Elizabeth Terminal and was served with a notice of
illegal entry and subject to a screening interview.
19 The reasons Mr X did
not wish to return to the European jurisdiction were because he stated that he
had faced threats and physical harm from other ex-patriate Syrians who were
Muslim extremists and affiliated to the so-called Islamic State and other such
organisations. He was perceived by those threatening him to belong to a
different sect to them.
20 In his screening
interview with JCIS, he revealed that the authorities within the European
jurisdiction had moved him to other cities, at least four or five times, to
avoid those threatening him. He claimed that the sizeable Syrian ex-patriate
community in the European jurisdiction, his name, his accent and communication
on social media about him all meant he continued to be susceptible to being
discovered or identified. His affidavit disclosed a situation of him living a
life of fear and as a recluse. He alleged that on one particular occasion, he
returned home to find a knife left on a table and letter purporting to be from
ISIS.
21 The applicant did not
dispute that the authorities had done their best to protect him. In addition to
moving him several times, he was also in receipt of a letter from the police
which he could present anywhere in the country to avail himself of the
assistance of local authorities.
22 There had also been
several other failed attempts by Mr X to get to and/or seek asylum in other jurisdictions
such as the Republic of Ireland, Canada and Gibraltar. A combination of being
stopped at the points of entry/exit trying to enter Ireland and Canada, and
leaving Gibraltar in fear of his safety because his name was published in a
media article, meant that he failed in pursuing asylum elsewhere and each time
was returned to the European jurisdiction where he had first been granted
asylum.
23 The applicant’s
entry into Jersey on 5 August 2018 followed an earlier failed attempt on 16
July 2018 (where after getting into difficulty at sea, he was assisted by the
French coastguard back to France).
24 On the basis that the applicant
could be removed to a safe country, and taking at face value his claims that
the authorities of the European jurisdiction had done all they could to assist
him, the JCIS determined on 15 August 2018 to remove him under r 345
without substantive consideration.
25 Through his counsel, Mr
X applied for leave to bring an application for judicial review. Mr TJ Le Cocq,
then Deputy Bailiff, ordered an inter
partes hearing to be convened to determine the matter of leave, and a stay
on Mr X’s removal was imposed in the meantime.
26 The parties originally
came before the Deputy Bailiff for a leave hearing on 13 September 2018. However,
just before the hearing Mr X disclosed a psychological report which stated
that, in the opinion of the psychologist, he suffered from PTSD (inter alia), was at risk of suicide, and
that therapy might have only limited benefit were he to remain in the European
jurisdiction where he felt under threat.
27 The matter was
adjourned so that JCIS could consider the psychological report and what options
would be available to Mr X if he was returned to the European jurisdiction.
Having considered these matters, JCIS maintained its decision on 3 October 2018
to refuse the application for asylum and to remove the applicant back to the
safe country.
Application for leave
28 The resumed leave
hearing took place on 14 November 2018. The applicant’s three grounds for
seeking leave were:
(i)
the decision to remove him without investigating whether or not he could be
safely returned was a breach of the procedural requirements of art 3 ECHR;
(ii)
the decision to remove him was a breach of art 3 ECHR because he faced a real
risk of inhuman or degrading treatment on his return; and
(iii)
the respondent’s failure to consider all material matters was
unreasonable, or the decision to remove him was in all the circumstances
unreasonable.
29 The Minister argued in
response that r 345 was engaged, and therefore there was no need for
substantive consideration. It was further argued that the harm the applicant
asserted he was facing was not art 3 ECHR ill-treatment because it originated
from non-state actors and there was a sufficiency of protection from the state
authorities. Further, notwithstanding his mental health issues and his alleged
risk of suicide, this did not prevent his removal based on the principles set
out in the jurisprudence and because he would be able to avail himself of
treatment when back in the European jurisdiction.
30 The Deputy Bailiff
noted that the asylum decision had potentially profound and far reaching consequences
for the applicant and that there were serious issues to be considered relating
to the applicant’s human rights and how those interplayed with the asylum
regime in the particular circumstances of the case. Leave was therefore granted
on the basis that there were arguable grounds having realistic prospects of
success, but there were arguments on both sides which necessitated the matter
being referred to a judicial review hearing.[12]
It was also confirmed, as per the dicta of
Sir William Bailhache, Bailiff, in J v
Lieutenant-Governor,[13]
that immigration judicial reviews necessitate a wider examination (or
“anxious scrutiny”) by the court given the engagement of
fundamental human rights—
“it is not correct to say that there is no deference to the
decision-taker. A higher degree of scrutiny on human rights grounds is still
not a full merits review. What is needed is that the court examine what reasons
have been given, whether they comply with the fundamental rights of the
applicant and in particular whether the lawfulness of what has been done meets
the structured proportionality test that the courts now apply, recognizing that
the decision-taker has a discretionary area of judgment.”[14]
Judicial review hearing
31 The final hearing took
place on 3 May 2019. The primary issues before the court were (i) whether the
threat from non-state actors constituted art 3 ill-treatment, and (ii) whether
there would be a breach of art 3 ECHR if he was sent back to the European
jurisdiction because of his mental health issues and his threats to commit
self-harm, or even suicide.
Threat to life from non-state
actors
32 This issue was essentially
abandoned by Mr X at the hearing, because it was conceded by his counsel that
the European jurisdiction was a safe country. Due to the overlap with the
mental health/self-harm issue, the matter was nonetheless discussed during oral
submissions.
33 The European Court of
Human Rights (“ECtHR”) and House of Lords had already considered
the question of whether harm committed by non-state agents could constitute the
ill-treatment proscribed by art 3 ECHR. In HLR
v France,[15] the
ECtHR commented that art 3 ill treatment could in theory emanate from
non-public officials but that—
“it
must be shown that the risk is real and that the authorities of the receiving
State are not able to obviate the risk by providing appropriate
protection.”[16]
34 In R (Bagdanivicius) v Home Secretary,[17]
Lord Brown deprecated a failure in some cases to distinguish between the risk
of serious harm on the one hand (for example being beaten up and seriously
injured by a criminal gang) and the risk of treatment contrary to art 3 ECHR on
the other. He said the former will only reach the threshold to transform into
the latter when the state has failed in its positive duty to provide reasonable
protection against the harm inflicted by the non-state agents.[18]
35 At the original leave
hearing in September 2018, the Deputy Bailiff had queried with counsel for the
Minister whether the use of the word “obviate” in HLR meant that the receiving
jurisdiction had to remove any risks. It was submitted that such a threshold
would be unrealistically high and that the language used by Lord Brown
(“reasonable protection”) was a more appropriate threshold. At the
final hearing, counsel was able to direct the court to a passage in Bagdanivicius[19]
where their Lordships referred to the original judgment of HLR in the French language and the use of the verb “obvier,” meaning “to take
precautions against”; and so the potential argument that the receiving state
would have to remove altogether any threats from non-state actors was disposed
of in short order.
36 Mr X had, by his own
case, been relocated some four/five times by the authorities and was in
possession of a letter which he could use to seek the urgent assistance of
local authorities. Thus, the Minister argued, the authorities of the European
jurisdiction had satisfied Lord Brown’s requirement to provide
“reasonable protection” against the risk of harm. The court agreed
with the Minister and noted:
“Even taking the assertions made by the Applicant at face value
and in the light of the principles in the case law, with regard to this part of
the application, in our judgment the Applicant’s fears of steps being
taken against him by non-state agents in the European Jurisdiction by reason of
his background, even were they well founded, have been met by the more than
reasonable and appropriate steps taken by the authorities there to address
those risks. In our judgment the case law did not require the Minister nor does
it require us to be satisfied that the authorities of the European Jurisdiction
have obviated those risks in the sense of removing them completely but merely
that they have taken reasonable and appropriate steps to protect the Applicant
from them. Indeed on our understanding of the facts it is difficult for us to
see what more the authorities of the European Jurisdiction could have
done.”
Mental health and self-harm risks
37 The main thrust of the applicant’s
argument at the final hearing was that the decision to remove him back to the
European jurisdiction would be a breach of art 3 ECHR because it would cause an
increase in PTSD symptomology and risk of suicide (as per the opinion of the
psychologist). He had attempted to commit suicide more than once whilst in
Jersey and this was said to be associated with his apprehension of being
returned to the European jurisdiction. The psychological evidence was not
disputed.
38 There is a body of
ECtHR jurisprudence[21]
which provides that a deterioration of health (physical or mental) caused by a
return to the receiving country can in
theory be a breach of art 3 ECHR, but it has only been in exceptional
circumstances where such a claim has succeeded.
39 In terms of mental
health, the seminal case is a decision of the Court of Appeal (England and
Wales); J v Home Secy.[22] In J, the appellant alleged that he would
commit suicide if returned to his country of origin, Sri Lanka. He had
previously been in enforced slave labour and had been subject to the
“most horrific torture at the hands of the Sri Lankan army.”
Consultant psychiatrists had agreed that he was a high risk of suicide if
returned to Sri Lanka.
40 Lord Justice Dyson drew
a distinction between “foreign cases” and “domestic
cases”. Domestic cases, he explained, are claims where a state is said to
have acted within its own territory in a way which infringes the enjoyment of
an ECHR right within that territory. This would cover the first two stages of
removal; (i) being told that you are being removed, and (ii) the transfer to
the receiving jurisdiction. Foreign cases represent the third stage, i.e. when the applicant is in the
receiving country. In a foreign case it is not claimed that the removing state
has itself committed a breach of ECHR in its own territory but that the removal
will lead to a violation of the ECHR rights in the receiving state.
41 The domestic stages
referred to above were not in dispute in the X case; i.e. it was
accepted that the necessary safeguards would be in place if and when Mr X was
told his application had failed and in the transport back to the European
jurisdiction (para 86).
What was in dispute was the “foreign case” stage, i.e. once he was back in the European
jurisdiction. Dyson, LJ had said that in such cases, where the art 3 claim
relies on suicide or self-harm, the test is whether there are strong grounds
for believing that the person, if returned, faces a real risk of ill treatment,
and the test does not differ in suicide cases. Mr X was rather hoist by his own
petard on this because he conceded the European jurisdiction was safe and the
authorities were taking reasonable precautions to safeguard him and as a result
there was no threat of art 3 ill-treatment (applying the Bagdanivicius test above). Therefore, if there was no art 3
ill-treatment (albeit there might have been harm faced by non-state actors)
then the claim based on self-harm was bound to fail.
42 The test was amplified
by Dyson LJ as follows:
(i)
the treatment must attain a minimum level of severity;
(ii)
a causal link must be shown to exist between the removal and the treatment;
(iii)
the art 3 threshold is particularly high in foreign cases and is even higher
where the alleged inhuman treatment results from some naturally occurring
illness, physical or mental, and not the responsibility of the public
authorities of the receiving state;
(iv)
an art 3 claim can in principle succeed in a suicide case;
(v)
is the applicant’s fear of ill-treatment upon which the risk of suicide
is based objectively well-founded? If not, this tends to weigh against there
being a real risk of ill-treatment; and
(vi)
do the removing and receiving states have effective remedies to reduce the risk
of suicide? If they do, then this will also weigh heavily against the claim.
43 Points (i)–(iv)
of the above analysis are fairly uncontroversial and were not the focus in the X case.
Objectively well-founded fear of ill treatment
44 Regarding (v), as
mentioned above, the difficulty for Mr X was that he had accepted the European
jurisdiction was safe. In any event, the court were satisfied that the
authorities had taken reasonable precautions and that therefore the harm he
faced had not transformed into ill-treatment. As a result, and applying Dyson,
LJ’s test, he could not justify that his fear of art 3 ECHR ill-treatment
(rather than harm) was objectively well-founded.
Effective remedies
45 In respect of (vi),
what is required are “effective remedies”
to reduce the risk of suicide. In another case put before the court, CK v Slovenia,[23]
the Court of Justice of the European Union had considered the issue of asylum
seekers at risk of self-harm and/or suicide in the context of art 4 of the
Charter of Fundamental Rights (which does not apply in Jersey but which is
analogous to art 3 ECHR).
In that case, the applicants were successful and the CJEU said that where the
transfer of an asylum seeker with a particularly serious mental or physical
illness would result in a real and proven risk of a significant and permanent
deterioration in his state of health, then such transfer would constitute
inhuman and degrading treatment.[25] The
CJEU went on to say that the transfer of an asylum seeker in such circumstances
could only take place in conditions “which exclude the possibility that
the transfer might result in a real and proven risk of the person concerned
suffering inhuman or degrading treatment,”[26]
and the authorities and courts must “eliminate any serious doubts”
regarding the impact of the transfer.[27]
Essentially, the removing authorities must consider what is in place in the
receiving jurisdiction to assist the applicant in terms of mental health
facilities and services. The CJEU confirmed in the CK case that it regards it
as a strong presumption that the medical treatment offered to asylum seekers/refugees
in EU member states will be adequate,[28]
and there was no suggestion that Mr X would not be able to avail himself of the
comprehensive health care system in the European jurisdiction. In fact,
enquiries with the counterpart authorities confirmed that, as a recognised
refugee, he was entitled to the same access as citizens of that jurisdiction
(which had excellent facilities for dealing with those with mental health
issues). Mr X’s situation was therefore far removed from the situation in
J, and also another case Y&Z,[29]
where the applicants in both cases faced a return to a place still at civil war
and where they had been tortured by the state authorities themselves. As the
Royal Court rightly observed, the facts in Y&Z
in particular “might be termed as extreme and in our judgment were
markedly more severe that presented in the instant application” (para 40).
46 In response to the argument
of the Minister that the applicant could avail himself of the health system in
the European jurisdiction, he asserted that any treatment in the European
jurisdiction would not have any effect on him because of his fears about
residing in that jurisdiction. This argument was not successful; counsel for
the Minister had made the point that all those challenging removal based on a
risk of suicide could simply argue the same, i.e. that treatment in the receiving jurisdiction would be of no
benefit. There was, as a result, a dangerous risk of a precedent being set
which would mean that in theory no one would ever be removed if they advanced
this argument. Sedley LJ had opined in ZT,[30]
that—
“the internal logic of the Convention has to give way to the
external logic of events when these events are capable of bringing about the
collapse of the Convention system . . . The ECHR is neither a
surrogate system of asylum nor a fallback for those who have otherwise no right
to remain here. It is for particular cases which transcend their class in
respects which the Convention recognises . . . just as the Convention
has grown through its jurisprudence to meet new assaults on human rights, it is
also having to retrench in places to avoid being overwhelmed by its own
logic.”
47 Longmore LJ emphasised
in another case, KH[31] that —
“the
truth is that the presence of mental illness among failed asylum-seekers cannot
really be regarded as exceptional. Sadly even asylum-seekers with mental
illness who have no families can hardly be regarded as ‘very exceptional’.”
48 Finally, in MN,[32]
it was found that there were mental health facilities available in the
receiving jurisdiction capable of addressing the appellant’s problems,
and Maurice Kay LJ commented that—
“Whilst
suicide risks can never be quantified with exactitude, I know of no case in
which, absent a legal flaw, facts on a level with those in the present case
have produced a favourable outcome for an appellant.”
49 There had been a
recognition by the judiciary that there was a risk of the ECHR overwhelming
itself and being used as a “fallback” for asylum cases. A
retrenchment was necessary and the case law established that asylum seekers
with mental health issues are not in an exceptional position which takes them
into a category of persons who cannot be removed. To reach the threshold at
which removal would breach art 3 ECHR (and art 33 of the Refugee Convention),
it is necessary for an applicant’s case to be exceptional and to satisfy
the test set out by Lord Justice Dyson. On this issue the court concluded:
“With regard to the Applicant’s mental health, in our
judgment, suitable arrangements can, should and will be put in place to protect
him during the process of his removal from Jersey, transit to the European
jurisdiction and his reception there, and thereafter. We are satisfied that the
European Jurisdiction has a more than sufficient system of healthcare,
including psychiatric care, to assist the Applicant.”
Decision
50 For the reasons set out
above, the court announced on 1 July 2019[34]
that the application for judicial review was refused and provided the draft
judgment to the parties. The judgment was then handed down and published on 10
July 2019. Mr X did not seek leave to appeal the court’s decision and was
subsequently removed from Jersey and transferred back to the European
jurisdiction.
Procedure
51 The Royal Court
expressed some concerns over the screening interview carried out by JCIS.
Because it was the only opportunity afforded to the applicant to put forward
his case, the court said that the original decision taken in August 2018 was
“potentially flawed because of the misleading nature of the [screening]
interview”. The court was concerned that the screening interview had been
presented as a “conversation” and that it should have been made
clear to the applicant that the result of the interview could be his immediate
removal, in order that he could take this into account when deciding if he
wished to request a translator and/or legal advice (both of which he had declined).
52 The advice from the court
was that in future it would be fairer to make it clear what the import of any such
interview might be so that the interviewee could take a fully informed view on
matters such as translation and legal advice. Such comments were echoed in A v Minister for Home Affairs[35].
Conclusion
53 This was the first
application for judicial review in respect of an asylum decision, but also, as
the then Deputy Bailiff described it “unusual,” because of the
engagement of r 345 and the summary decision to refuse asylum without a
substantive consideration.
54 Given Jersey’s geographical
situation,, there is an inherent threat of persons (who have fled persecution
elsewhere) seeking to enter the Bailiwick without leave to do so. Such threats
may be affected by the strengthening of checks on transport between Calais and
Dover, and also the terms of the new relationship between the United Kingdom
and the European Union.
55 It was therefore useful
for this case to have been fully argued before the court. Whilst every case
will have different facts, the reality is that many persons arriving in Jersey
fleeing persecution elsewhere will have been to at least one, if not multiple,
safe countries in the meantime. The X
case establishes an important precedent that r 345 is an appropriate
mechanism to have in such cases when the applicant can be removed to a safe
jurisdiction, and it mitigates against the risk of “asylum
shopping.” Furthermore, the court adopted the approach in other cases
which established that whilst mental health issues and suicidal ideation are
sadly not uncommon amongst asylum seekers, the threat of self-harm will not
automatically render removal to the receiving jurisdiction unlawful.
Steven Meiklejohn is
an Advocate of the Royal Court of Jersey and a Legal Adviser in the Civil
Division of the Law Officers’ Department, Jersey. Advocate Meiklejohn
represented the Minister for Home Affairs throughout the X case, and was
assisted by Advocate James Rondel. This article does not necessarily express
the views of the Law Officers’ Department.