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Cite as: [2012] ScotCS CSOH_179

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[2012] CSOH 179



in the Petition of




Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 23 June 2011 denying the petitioner refugee status

and Answers for

The Secretary of State for the Home Department



Petitioner: Bovey QC, Byrne; Drummond Miller LLP

Respondent: MacGregor; Office of the Solicitor for the Advocate General

27 November 2012

[1] This case is about a 52-year old Ugandan visa overstayer who claims that his refugee status entitles him to asylum in the United Kingdom. He is the petitioner. The United Kingdom Border Agency [UKBA] acting on behalf of the Secretary of State for the Home Department, respondent to the petition, wants to remove him to Ghana where he lived for 21 years before coming to the United Kingdom. The main question is whether the petitioner benefits from article 32(1) the Geneva Convention relating to the status of refugees, 1951, as extended by the 1967 Protocol [the 1951 Convention]: "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order." There are a number of consequential issues which really amount to the question whether the petitioner is entitled to Francovich damages under Community Law and "just satisfaction" compensation in terms of the European Convention on Human Rights [ECHR] for the United Kingdom's alleged failure within a reasonable time to recognise the petitioner's claim for protection as a refugee within the United Kingdom with deprivation of the consequential benefits that recognition would have entailed. I heard submissions on 28 and 29 June 2012 and made avizandum.

[2] I have now decided that the petitioner is not "a refugee lawfully in the territory" of the United Kingdom for the purpose of the 1951 Convention art. 32(1) and that his petition, including the consequential claim for damages and compensation must be refused. I think that I can put the matter succinctly. All persons granted asylum in the United Kingdom are recognised as having refugee status: but not all refugees in the United Kingdom will necessarily be granted asylum; and among the refugees who will not necessarily be granted asylum in the United Kingdom are those who are not lawfully present in the United Kingdom and who can be removed to a safe third country. The logic of the petitioner's position, in contrast, is that refugee status once recognised anywhere in the world is a passport to asylum in the country of choice, at least in the 1951-Convention-signatory country of choice; and if that country does not live up to expectations then the refugee can go asylum-shopping elsewhere. I do not think that this is what is intended by the idea of "international protection" for refugees [MacDonald's Immigration Law and Practice, 7th edn (London, 2008), § 12.4; R(ST) v Secretary of State for the Home Department [2010] 1 WLR 2858 at 27, 52 per Stanley Burnton LJ with whom the other members of the Court of Appeal agreed].

[3] Whether, in this case, Ghana is a "safe third country" is a question perhaps not fully settled, the apprehension expressed at the bar on the petitioner's behalf being that, if the petitioner were to be returned to Ghana, he might just be at risk of refoulement, meaning return to his country of origin. Counsel for the respondent has given an undertaking on behalf of the Secretary of State that the petitioner will not be returned to Ghana until the respondent is satisfied that there is no risk of refoulement to the country of origin, namely Uganda. I understand the petitioner's counsel to be satisfied with this undertaking. On that understanding I have proceeded on the assumption that Ghana is a safe third country. I should also mention that there are issues in these proceedings about the interpretation of various Council Directives: but neither party wishes me to refer questions to the European Court of Justice for a preliminary ruling; and I do not conceive that I am bound to do so in this case ex proprio motu.


[4] The following account of the background to the petition is derived almost exclusively from the petitioner's productions, principally the determination of Immigration Judge Jamieson dated 31 October 2008 and the UKBA decision letter dated 23 June 2011 which sets out the petitioner's immigration history. The petitioner is a refugee from Uganda. He was born in Uganda on 27 June 1960 and educated there to university level. As a student activist he was subject to political persecution in Uganda and fled to neighbouring Kenya in 1981. According to an email from the United Nations High Commissioner for Refugees [UNHCR], Nairobi, dated 14 August 2008, the petitioner applied for asylum in Kenya on 7 April 1981. He was accepted as a refugee by UNHCR, Kenya, on 8 October 1982. The petitioner claims that while staying in Kenya he continued to feel at risk of persecution by political elements in Uganda. On 12 October 1982 the petitioner was issued with a 1951 Convention travel document to travel to Ghana to pursue his studies. A fax from UNHCR dated 16 October 2008 advised that the petitioner obtained a visa in Ghana consistent with recognition of his refugee status there. In oral evidence to the immigration judge the petitioner stated that he had been granted asylum in Kenya and Ghana. The letter from the petitioner's solicitors to UKBA dated 23 February 2011 asserted that the petitioner was "a refugee in Ghana but not a settled resident".

[5] In fact, the petitioner lived in Ghana for 21 years from 1982 to 2003. He married at Accra, Ghana in November 2001. He and his wife have four children, all born in Ghana, a son born in June 1991, a son born in April 1993, a son born in April 1995, a son born in March 1998. The petitioner's wife and children still live in Ghana. In her letter dated 15 November 2011, the petitioner's wife states that she and her husband are still married and that they are not separated. She and the children look forward to being reunited with the petitioner. According to the petitioner's curriculum vitae [CV] dated 13 May 2011 he enrolled at the University of Science and Technology, Kumasi, Ghana in September 1982 and on, an undisclosed date, graduated with the degree of MSc (Hons) in electrical and electronic engineering. The CV describes his career as an electrical engineer and project manager for public infrastructure projects in Ghana from 1986 to 2005.

[6] The CV discloses that the petitioner was in the United Kingdom from May to June 2002 on a Department of Trade and Energy study tour. This is consistent with the immigration history which records that a six-month, multi-entry, United Kingdom visitor visa was issued to the petitioner, valid from 4 April to 4 October 2002. A second six-month, multi-entry, visitor visa was issued to the petitioner valid from 7 July 2003 to 7 January 2004. I was told by counsel for the respondent that the petitioner entered the United Kingdom, ostensibly for an 11-day business visit in September 2004. The CV bears to show that the petitioner continued to work as a project director in Accra until 1995. The CV also shows that from September 2003 to October 2004 the petitioner undertook a course at the Centre for Renewable Energy Systems Technologies [CREST] at Loughborough University, Leicestershire, and graduated MSc in renewable energy systems technology. His visa expired on 7 January 2004.

[7] The petitioner's CV states that from 2005 to 2008 he was employed by Cobham Advanced Composites Limited, Shepshed, Leicestershire. A letter from the company dated 2 October 2008 describes his position as "quality control inspector". He appears to have been on the payroll from 27 March 2006 to 6 May 2008. The letter from the company implies that before the petitioner was taken on to the permanent staff in 2006 he was employed for a period as an agency worker: but his time as an agency worker is not detailed. The CV gives the impression of a seamless transition from employment in Ghana to employment in the United Kingdom in 2005. An email from the company dated 29 November 2011 explains that the petitioner's employment was terminated on 6 May 2008 because the information then available evidenced that the petitioner did not have leave to remain in the United Kingdom. Three pays slips from the company show the petitioner using a national insurance number in the period 2006 to 2008. No one has explained how the petitioner acquired a national insurance number without having leave to remain and without a work permit.

[8] On 29 May 2008 the petitioner was served with form IS151A directions for removal as an overstayer. On 18 July 2008 he was placed in immigration detention. On 20 July 2008 he made a claim for asylum in the United Kingdom. He subsequently explained to the immigration judge that, when it became clear that he was to be removed from the United Kingdom, he claimed asylum in order to save his life. On 6 August 2008 the petitioner's asylum claim was refused by UKBA and the petitioner was issued with form IS151B directions for removal "to Uganda or Ghana". The petitioner lodged an appeal to the Asylum and Immigration Tribunal and was released from detention (presumably on immigration bail with reporting conditions). Following a hearing on 17 August 2008 Immigration Judge Jamieson issued his determination dated 31 October 2008 which decided as follows:

"45. The appeal on asylum grounds is allowed to the extent that the Appellant has established a well founded fear of persecution if the Respondent returns him to Uganda, but it is dismissed in respect of his claim that he has a well founded fear of persecution if returned by the Respondent to Ghana.

46. The appeal on humanitarian protection grounds is dismissed.

47. The appeal on human rights grounds under Article 3 of the ECHR is dismissed.

48. The appeal on human rights grounds under Article 8(1) of the ECHR is dismissed."

The immigration judge's conclusion on the facts in relation to the asylum claim included the following:

"I find that [the petitioner] has failed to establish a well founded fear of persecution if he were returned to Ghana, which, in effect, had been his home country from 1982-2003 (when he came to and later stayed illegally in the United Kingdom)."

The petitioner made an application for reconsideration which was refused by Senior Immigration Judge P A Spencer on 13 November 2008. Another application appears to have been made - details have not been provided - and refused on 8 December 2008. The petitioner became rights of appeal exhausted on 23 December 2008. That should have been the end of the story.

[9] Nothing happened for more than two years and then, by letter dated 23 February 2011, further submissions were made to UKBA on the petitioner's behalf by the Ethnic Minorities Law Centre, solicitors, Glasgow. The petitioner was by then resident in Glasgow and apparently had been for some time. The letter submitted that "the determination of the Immigration Judge [31 October 2008] should be effected and Refugee Status awarded to my client as a matter of urgency". It was claimed that the Home Office had acted negligently in failing to give the petitioner leave to remain in the period of over two years since the decision of the immigration judge. The letter went on to say:

"It is assumed from the lack of action and communication on the part of the Home Office that they do not propose to return my client to Ghana. Any such proposal should have been effected 2 years ago, however the extended delay and silence on the part of the Home Office renders, it is submitted, this option now unreasonable, irrational and unfair."

In accordance with the requirement for personal attendance introduced on 14 October 2009, the papers were returned with a request that the submissions be presented by the petitioner in person. It appears that the submissions were not lodged by the petitioner in person until on or after 1 June 2011. The submissions were considered by UKBA under rule 353 of the Immigration Rules. The submissions were rejected and it was further determined that they did not amount to a fresh claim. By letter dated 23 June 2011 UKBA advised the petitioner's solicitors that the petitioner should make arrangements to leave the United Kingdom without delay failing which his removal might be enforced. The petitioner did not leave the United Kingdom. The present petition was presented to the Court of Session three months later seeking, among other things, declarator that the petitioner is a refugee lawfully in the United Kingdom for the purposes of the 1951 Convention art. 32(1) and reduction of the decision of 23 June 2011.

[10] The petitioner's application to remain in the United Kingdom has been supported by Christian friends in Loughborough and Glasgow and by Andy Reed, Member of Parliament for Loughborough who, on 19 December 2008, wrote to the High Court of England & Wales "RE: Asylum and Immigration Tribunal Appeal" with favourable comment on his then constituent's character and skills. The petitioner appears to have been, since May 2010, a member of the congregation of St George's Tron Church, Glasgow, (Church of Scotland), where he attends for worship twice a week [letter from Dr Euan G Dodds, undated]. He undertakes voluntary work for the church and for the Salvation Army. According to the petitioner's CV, since 2008 the petitioner has been involved in a voluntary initiative which goes by the name "Solar Grid UK" relative to "projects in the UK renewable energy sector". He seems to be connected with a company called "Energy Sector Consult UK Limited". His last employer in Ghana was Energy Sector Consult Limited. I do not know what connection, if any, there is between the companies and what the petitioner's position is or was in the ownership and management of the companies. There are unanswered questions: but it is fair to say that on the information provided the petitioner appears to be a worthy individual.

The meaning of the 1951 Convention

[11] The argument that the petitioner is "a refugee lawfully in the territory" of the United Kingdom depends on a certain interpretation of the 1951 Convention. Senior counsel for the petitioner referred to the recent decision of the Supreme Court in Regina (ST) and sought to distinguish the ST result on the facts of the case. ST decided that an Eritrean national granted "temporary admission" to the United Kingdom thirteen years previously for the purpose of assessing her asylum claim had not been given leave to enter or leave to remain, was not "lawfully present" in the United Kingdom for the purpose of the 1951 Convention art. 32(1), and was liable to be removed. Senior counsel submitted that the determining fact in ST was that the claimant, unlike the petitioner in the present case, had never been lawfully present. The important point of distinction according to senior counsel is that ST had neither leave to enter nor leave to remain: in contrast the petitioner had had leave to enter even if, after the expiry of his visa, he no longer had leave to remain. Drawing a distinction between "leave to enter" and "leave to remain", senior counsel submitted that at the expiry of his visa the petitioner did not cease to have leave to enter. Therefore his presence in the United Kingdom continued and continues to be lawful.

[12] I do not accept that the petitioner is "a refugee lawfully in the territory" of the United Kingdom. I say this for four reasons. First, looking to the language of the 1951 Convention, a distinction has to be drawn between being a refugee and receiving international protection and asylum in a particular state. As I understand the article 32 concept of "lawful presence", it is predicated on the individual's entry to and, or alternatively, his or her presence in the host state
qua refugee. The lawful presence of a refugee depends on the refugee having official permission, in some sense, to be in the host state as a refugee. A refugee who lawfully enters and remains in another capacity is not "a refugee lawfully present". The petitioner's visit in 2003 was not as a refugee but was on a standard six-month, multi-entry visa which expired on 7 January 2004. The petitioner's asylum claim, first made four years later in 2008, has been rejected. When he was present with and solely by virtue of a valid visitor's visa the petitioner was no more "a refugee lawfully present" than ST was when temporarily admitted for the purpose of determining her refugee status.

[13] In
ST the claimant's written case offered an analysis of levels of attachment to host states and the corresponding hierarchy of refugee rights envisaged by the 1951 Convention. Lord Hope of Craighead DPSC described the analysis as "helpful". The analysis is drawn from the leading authority, J C Hathaway, The Rights of Refugees under International Law (Cambridge, 2005), 154-160. The analysis distinguishes "physical presence", "lawful presence", "lawful stay or residence" and "habitual residence". The petitioner in the present case claims that the analysis supports his argument. He founds particularly on the difference between on the one hand "physical presence" (articles 4, 27 and 28(1)) and "lawful presence" (articles 18, 26 and 32) and on the other hand between "lawful presence" (articles 18, 26 and 32) and "lawful stay or residence" (articles 7(2), 10, 15, 19, 21, 23, 24(1)-(3), 25 and 28). I am not sure, with respect, that I find the analysis wholly convincing for the reason that it is questionable whether the drafting tensions evidenced in the travaux préparatoires were resolved to the extent of producing hard-and-fast 1951 Convention meanings for the various concepts. It seems paradoxical to insist, for example, that refugees who have the right in terms of article 26 to choose their place of residence in the host state are not lawfully resident but are merely lawfully present.

[14] In any event contemporary expositions quoted in the case of ST, in both the Supreme Court and in the Court of Appeal, rather suggest that in the early 1950s the consensus was that the 1951 Convention concept of "lawful presence", whatever precisely it might mean in a positive sense, did not describe the situation of refugee overstayers, let alone of visitor overstayers who subsequently claim refugee status. In the Court of Appeal Stanley Burnton LJ cited the footnote reference to the discussion of the then draft article 10 in chapter 3 of Professor Hathaway's book:

"The expression 'lawfully within their territory' throughout this draft convention would exclude a refugee who, while lawfully admitted, has overstayed the period for which he was admitted or was authorized to stay or who has violated any other condition attached to his admission or stay: 'Report of the Ad Hoc Committee on Statelessness and Related Problems' UN Doc E/1618, 17 February 1950, at Annex II (article 10)."

In the Supreme Court Lord Hope noticed the view of N Robinson, The Convention relating to the Status of Refugees, its History, Contents and Interpretation (New York, 1953), 110-111:

"'Lawfully in the country' was understood to refer to refugees either lawfully admitted or whose illegal entry was legalised but not to refugees who, although legally admitted or legalised, have overstayed the period for which they were admitted or were authorised to stay or who have violated any other condition attached to their admission or stay."

This remains a standard view if not the standard view. In the Court of Appeal, Stanley Burnton LJ quoted from A Grahl-Madsen, described as the "father of refugee law", The Land Beyond, Collected Essays on Refugee Law and Policy (The Hague, 2001), 7-8:

"[Article 32] only applies to persons lawfully in the territory of the contracting state in question. A refugee who has entered the territory illegally may be expelled without being able to invoke article 32. The same applies to a refugee whose residence permit has expired, provided that the state in whose territory he lives is not under an obligation to renew it."

Lord Hope accepted that thinking on the matter had possibly developed to some extent over the 60 years since the 1951 Convention but not to the point of consensus among commentators that the term "lawful presence" should be given a new and autonomous 1951 Convention meaning or as to what the autonomous meaning might be. Lord Dyson took the same view [R(ST) v Secretary of State for the Home Department [2010] 1 WLR 2858 at 21, 27, 28, 35-39, 48-52 per Stanley Burnton LJ with whom the other members of the Court of Appeal agreed; R(ST) v Secretary of State for the Home Department [2012] 2 WLR 735 at §§ 1-5, 8, 14, 21, 24-40, 42-45, 48, 49 per Lord Hope of Craighead DPSC with whom Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Dyson JJSC agreed, at §§ 51-65 per Lord Dyson JSC, separate and concurring judgment].

[15] This brings me to the second point. As the Supreme Court made clear in ST, since an autonomous 1951 Convention meaning cannot be attached to the idea of "lawful presence", what is "lawful" and "unlawful" for 1951 Convention art. 32 purposes has to be determined by the domestic law of the respective contracting parties. In the present case UKBA proposes to remove the petitioner in accordance with directions for removal issued in terms of the Immigration and Asylum Act 1999 s 10, "Removal of persons unlawfully in the United Kingdom". Section 10(1)(a) applies to the petitioner in that: "having only a limited leave to enter or remain, he... remains beyond the time limited by the leave." I note that in terms of the Immigration Act 1971 s 24 "Illegal entry and similar offences", subsection (1)(b), a person who, "having only a limited leave to enter or remain in the United Kingdom... knowingly... (i) remains beyond the time limited by the leave...", commits a criminal offence. In terms of section 24(1A) the offence is committed on the first day of knowing overstay and continues thereafter. Counsel for the respondent asked me to note a case about the Immigration and Nationality (Fees) Regulations 2009 and 2010 in which a visa overstayer was described, in passing, as being in the United Kingdom "unlawfully" [R (on the application of Francis) v Secretary of State for the Home Department [2010] EWHC 1122 (Admin) at § 1]. Counsel submitted, correctly, that senior counsel for the petitioner had not cited any domestic authority at all in support of the view that the petitioner is in the United Kingdom lawfully.

[16] Senior counsel for the petitioner did submit that his argument is supported by making comparison with the wording of provisions dealing with seamen and aircrew temporarily admitted who overstay: the fact that there is no equivalent provision for overstaying visitors means, said senior counsel, that visa overstayers must be treated as continuing to have leave of entry and therefore to be lawfully present [Immigration Act 1971 ss 8 and 11(1) and (5)]. I disagree: the fact that matters are spelled out for the special class of seamen and aircrew does not defeat the intendment of all other provisions relating to visa overstayers. Senior counsel also founded on the web-based UKBA guidance for successful asylum seekers at, pages headed "Integration" and "Leave to remain". The guidance explains that claimants recognised as refugees or in need of humanitarian protection are given leave to enter or stay for an initial period of five years. The guidance states: "When you are given asylum or humanitarian protection in the United Kingdom, you will have the same rights as permanent residents of the country and will be able to start building a life here." Again, I do not see that this assists refugees whose asylum claims have been rejected. I am satisfied that since the expiry of the petitioner's six-month visa on 7 January 2004 the petitioner has been potentially liable to be removed on the ground that his presence in the United Kingdom is no longer lawful.

[17] Thirdly, the distinction drawn by senior counsel for the petitioner between "leave to enter" and "leave to remain" is artificial. Neither party has produced a copy of the visa or the visa terms and conditions: but I cannot envisage that the visa is capable of being read in such a way as allows the leave to enter to be severed from the leave to remain. In any event, leave to enter is a permission which is exhausted on entry and with the expiry of the multi-entry visa. It has no continuing force. If the petitioner's visa has expired his presence in the United Kingdom is unlawful.

[18] Fourthly, returning to the 1951 Convention, there is a coherence in the provisions of articles 31, 32 and 33 which is possibly masked in the English-language version because of the shades of meaning conveyed by the different words "legal" and "illegal" on the one hand, "lawful" and "unlawful" on the other. In English, article 31 refers to "illegal entry or presence" whereas article 32 refers to a refugee "lawfully in the territory". The French version uses a vocabulary of fully complementary opposites, "regular" and "irregular", the two categories being mutually exclusive and together exhaustive of all possible kinds of refugee presence in the host state. In terms of article 31, refugees whose presence is irregular must not be penalised provided they present without delay and show good cause for their irregular presence or entry, etc. In terms of article 32, refugees whose presence is regular have the right not to be expelled except on grounds of national security and public order. In terms of article 33 all refugees (whether their presence is irregular or regular) have the right not to be returned to territories where their lives or freedom would be threatened. The fact that the 1951 Convention makes provision for refugees whose presence is regular or lawful necessarily means that there are also other refugees whose presence is - at the risk of stating the obvious - irregular or unlawful; and if the petitioner has to be categorised, and he must be for the purposes of article 32, the petitioner belongs in the irregular or unlawful category.

[19] This is what UKBA thinks. Following the discharge of the first hearing in this judicial review, originally fixed for 15 February 2012, UKBA wrote to the petitioner's solicitors. The letter dated 30 March 2012 sets out UKBA's understanding of the petitioner's position as follows:

"5... your client's status as a Convention refugee (or as a refugee under the UNHCR's mandate) does not oblige the UK to grant him asylum under paragraph 334 of the Immigration Rules since there is a country to which he can be removed without risk of refoulement. He is not lawfully in the UK and therefore does not have the protection of Article 32 of the Refugee Convention which prohibits the expulsion of a refugee who is lawfully in the territory of a contracting state save on grounds of national security and public order.


7... The UK Border Agency is satisfied, taking into account the available evidence, including the findings of the Immigration Judge in October 2008, that your client's removal to Ghana would be in accordance with those provisions... Standing his residence in Ghana for over 20 years there is no evidence to suggest that he is at risk of refoulement to Uganda. Ghana is a signatory of the Refugee Convention and [MSK's] own evidence is that he was recognised as a refugee there and had UN travel documents confirming this."

Rule 334 of the Immigration Rules provides that a refugee will be granted asylum if the Secretary of State is satisfied as to five criteria, including that:

"... (v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life and freedom would threaten [sic] on account of his race, religion, nationality, political opinion or membership of a particular social group."

Rule 336 provides that an application which does not meet the criteria set out in paragraph 334 will be refused. The UKBA position, with which I agree, is that the petitioner's application does not meet criterion (v) because the petitioner can apparently be removed to Ghana without risk. This is the "safe third country" exception.

Recognition of the petitioner's refugee status

[20] The argument for the petitioner is that since the determination of the immigration judge on 31 October 2008, the Secretary of State has been bound to give effect to the petitioner's refugee status by granting him leave to remain in the United Kingdom. In this connection, senior counsel for the petitioner relied on the decisions in R (Boafo) v Secretary of State for the Home Department [2002] 1 WLR 1919 and R (Saribal) v Secretary of State for the Home Department [2002] EWHC 1542 (Admin). No doubt these decisions support the proposition that a tribunal determination allowing an asylum claim, if unappealed, is binding on the Secretary of State: but in the present case what the immigration judge determined on 31 October 2008 was that, although the petitioner had a well-founded fear of persecution if he were to be returned to Uganda, he did not have a well-founded fear if returned to Ghana; that, on his own evidence, the petitioner had been granted asylum as a refugee in Ghana; and that the petitioner's appeal so far as challenging the Secretary of State's decision to issue directions for the petitioner's removal to Ghana should be dismissed. I therefore do not accept the submission for the petitioner that the decision of 31 October 2008 bound the Secretary of State to recognise the petitioner as a refugee with a good claim for asylum within the United Kingdom.

[21] The petition is therefore, in my view, unfounded. I have checked again the terms of the petition, my notes of senior counsel's oral submissions for the petitioner and a two-page document entitled "Propositions for the Petitioner" handed up in Court which I have annotated to show which propositions relate to which of the five substantive issues into which senior counsel organised his submissions. (There was a sixth issue about pleading points). The whole claim is founded on the propositions that (a) the petitioner is a refugee who (b) is lawfully in the territory of the United Kingdom in terms of the 1951 Convention art. 32(1), and that (c) as such he has a right not to be removed and (d) a right to be granted asylum in the United Kingdom with attendant benefits. Importantly, the petitioner does not invoke Community Law to support his argument in relation to the first stage issues. Community Law is brought into play only in relation to the second stage and subsequent issues. I assume that this is because, at the first stage as explained below, Community Law excludes "safe third country" claims. What I have said so far should therefore be enough to dispose of the petition: but, for completeness, I am now going to deal with the submissions about the claimed consequences for the petitioner of the Secretary of State's refusal to give the petitioner the right to reside in the United Kingdom [petition arts. 7, 16-33].

Recognition of the petitioner's asylum claim within a reasonable time

[22] If, contrary to my view, the Secretary of State did have an obligation to recognise the petitioner's claim to remain in the United Kingdom as a refugee, then the Secretary of State has failed or at least delayed to implement that obligation. I agree with senior counsel for the petitioner that the obligation is to recognise such a claim within a reasonable time after a positive tribunal determination; and that, while what constitutes a reasonable time is a question of circumstances, pointers are offered by the rules and the web-based guidance on the indicative time targets for processing original asylum claims and applications for reconsideration. Senior counsel went on to say that the petitioner's asylum claim should have been recognised by the Secretary of State within one month. Supposing that there were an obligation I take the view that a reasonable time in this case would have been within a month or so after the determination of 31 October 2008, say by 1 December 2008. I think this would have been a reasonable time because the immigration judge's decision set out the relevant facts and little was needed in the way of further factual inquiry. On this hypothesis, supposing an obligation to act within a reasonable time, since 1 December 2008 at latest, it has been for the Secretary of State to justify the delay, something which - for understandable reasons - has not been done [Immigration Rules 326A, 327, 333A;, page headed "Employment"; MK (Iran) v Secretary of State for the Home Department [2010] EWCA Civ 155 at § 51 per Carnwath LJ; R (S and others) (Afghanistan) [2006] EWHC 1111 (Admin) at §§ 90-93, 97, 98].

Council Directives 2003/9/EC, 2004/83/EC and 2005/85/EC

[23] I assume that the domestic law of the United Kingdom does not offer a compensatory remedy for failures to process asylum claims within a reasonable time otherwise a claim for compensation in domestic law would have been presented - and it has not been. Senior counsel for the petitioner submitted that Community Law provides an independent source of the obligation to determine claims within a reasonable time; and that Community Law also provides a remedy in damages for individual asylum seekers who, because of delay, have been deprived during the period of delay of the benefits envisaged by Community Law for refugees granted status as such in receiving Member States. Senior counsel referred to Council Directives 2003/9/EC, the Reception Directive, 2004/83/EC, the Qualification Directive, and 2005/85/EC, the Procedures Directive. Article 10.1(d) of the Procedures Directive requires Member States to ensure that asylum seekers are guaranteed to have a decision on their applications "within a reasonable time". According to senior counsel, refugee entitlements in terms of the Qualification Directive are not dependent, as they are in terms of the 1951 Convention, on the degree of attachment. The entitlements particularly founded on are article 26, access to employment, and article 23, the maintenance of family unity. (The petitioner's complaint is that he has not been permitted to bring his wife and children to the United Kingdom.) The argument for the petitioner is that the Council Directives confer rights on individuals by direct effect, that the petitioner has been unlawfully denied access to the benefits envisaged by the Council Directives for individuals in his position and that he is entitled to damages. If there is inconsistency between domestic law in relation to the power to remove and Community Law in relation to the obligation to admit refugees to residence, then the former must yield [Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1992] 1 CMLR 305; Commune de Mesquer v Total France SA (C-188/07) [2008] 3 CMLR 16; Francovich v Italy (C-6/90) Case Analysis IA90A4150E4271 [1993] 2 CMLR 66].

European Convention on Human Rights [ECHR] article 8

[24] The petitioner also makes a Convention Rights (ECHR) claim for "just satisfaction" additionally or alternatively to the Community Law claim. The Convention Rights claim is for an alleged breach of ECHR art. 8 (right to respect for private and family life). The family life element is based on the petitioner's inability to bring his wife and children to live with him in the United Kingdom. The interference with the petitioner's private life is averred to extend to, among other things, a restriction on his ability to develop social relationships through work. The petitioner seeks monetary compensation [Niemietz v Germany (1992) 16 EHRR 97, 97; Sidabras v Lithuania (2006) 42 EHRR 6, 104; Smimova v Russia (2004) EHRR 22, 450; Campagnano v Italy Case Analysis I33E3595024BD1 (2009) 48 EHRR 43; R (on the application of Wright) v Secretary of State for Health [2009] 1 AC 739].

Validity of the petitioner's claim for payment

[25] The total damages and compensation sought for the Community Law and Convention Rights claims is £170,000, a substantial part of which is loss of earnings. These claims are in my view unfounded. I have been persuaded of this by counsel for the respondent. As counsel pointed out, the weakness in the argument for the petitioner is that claims for asylum like the petitioner's are inadmissible in terms of articles 25, 26 and 27 of the Procedures Directive 2005/85/EC. In particular, the petitioner's claim for asylum in the United Kingdom is inadmissible because in his case, on the information available, Ghana is a "first country of asylum" and, or alternatively, a "safe third country"; and because there is no risk of refoulement from Ghana to Uganda. It follows that UKBA was justified in Community Law as well as by the Immigration Rules in refusing the petitioner's claim for asylum in the United Kingdom and in proposing to issue directions for his removal to Ghana. This was in terms the position taken by UKBA in the letter of 30 March 2012 to the petitioner's solicitors:

"As to your client being entitled to asylum by virtue of Article 13 of the Qualification Directive, the UK Border Agency considers that the provisions of the Directive should be read together with those of Articles 25, 26, and 27 of the Procedures Directive. The UK Border Agency is satisfied, taking into account the available evidence, including findings of the Immigration Judge in your client's removal to Ghana would be in accordance with those provisions and he would be afforded the rights set down in Article 27."

If this is correct - and I think it is - there is no basis whatsoever for either the Community Law claim for damages or for the Convention Rights claim for just satisfaction. In addition there are separate objections to the Community Law claim and to the Convention Rights claim.

[26] Counsel for the respondent submitted that a breach of Community Law having direct effect does not of itself give rise to an individual claim for damages against the Member State in question: liability arises only exceptionally where there is a grave and manifest disregard by the Member State of its obligations; and, in the case of mistaken construction of a Directive, there is a remedy in damages only where the interpretation applied by the Member State is "entirely devoid of merit". Counsel submitted that nothing in the averments for the petitioner nor in the argument presented by senior counsel for the petitioner comes near satisfying the test as correctly enunciated by Collins J in Negassi. Negassi was a broadly comparable asylum-seeker case about an alleged breach of the access to employment provision in the Reception Directive 2003/9/EC. I agree with counsel for the respondent. The interpretation of the Qualification and Procedures Directives offered by counsel for the respondent and adopted by UKBA in the letter of 30 March 2012 is in my view correct: but in any event it is not "entirely devoid of merit" [(R) Negassi v Secretary of State for the Home Department [2011] 2 CMLR 36, 904 at §§ 18, 19, 25 - the CMLR report attributes the judgment to Elias LJ presiding, Rix and Tomlinson LLJ]. I should make it clear that the issue of direct effect for individual benefit has not been contested in the present proceedings. In connection with the question of direct effect and the ability of individual Member States to derogate from the Council Directives or to make more favourable provision, senior counsel for the petitioner referred to K Hailbronner ed, EU Immigration and Asylum Law (Munich, Oxford, 2011), ch 1, §§ 6, 61-64

[27] In Negassi Collins J also rejected the claimant's ECHR art. 8 private life claim for just satisfaction compensation. That claim drew, like the petitioner's private life claim in the present proceedings does, on the jurisprudence of Niemietz, Sidabras and Smimova. Collins J held that the claim was not well founded because, on a proper interpretation, the Reception Directive did not confer a right to work on someone in Mr Negassi's situation; and that, even if Mr Negassi had been excluded from employment unlawfully, just satisfaction in terms of the Human Rights Act 1998 s 8 and ECHR art. 41 would have been provided by a declaration to that effect. Counsel for the respondent in the present case founded on this [(R) Negassi v Secretary of State for the Home Department [2011] 2 CMLR 36, 904 at §§ 31, 40].

[28] Counsel also cited Bernard and Regina (KB) as authority for the propositions (1) that just satisfaction for Convention Rights violations does not automatically mean monetary compensation and (2) that any compensation awarded should be "restrained and moderate" [R (on the application of Bernard) v Enfield LBC
Case Analysis I753CBAFOE4281 [2003] HRLR 4 §§ H1, H3-H7, 42-43 (un-numbered paragraph), 59; R (on the application of KB) v South London and South West Region Mental Health Review Tribunal Case Analysis I79EA3D70E4281 [2004] QB 936 at §§ 20, 21, 52-54, 60]. Counsel pointed out, correctly, that the ECHR art. 8 private life claim in the present proceedings does not include a claim for loss of earnings: insofar as the claim is about lack of access to employment, it is about loss of the psychological and social advantages of being at work. Counsel submitted that the value of the family life aspect of the claim must be diluted by virtue of the fact that the petitioner had voluntarily separated himself from his family by coming to the United Kingdom on an eleven-day business trip and then staying on for years when there was no obstacle to him returning to his family in Ghana.

[29] Counsel for the respondent complained that the petitioner's averments of loss were inexcusably unspecific. The total claimed was £170,000. As regards the claim for loss of earnings the deficiency was repaired to an extent by the e-mail and wage slips from Cobham Advanced Composites Limited and by the employment report by Keith Carter Associates all of which have been lodged in support of the petition. Allowing for the fact that, according to the employment report, approximately £90,000 net could have been earned by the petitioner if he had continued in employment from November 2008 until April 2013, that still left almost £80,000 of non-financial loss to be justified. The petitioner's pleadings simply did not instruct the reader how much compensation was said to be attributable to each claimed breach of duty and head of loss [Jamieson v Allan McNeil & Son WS 1974 SLT (Notes) 9]. The respondent's answers had called on the petitioner to provide specification but the petitioner had failed to do so. The respondent was prejudiced by the absence of precision. In these circumstances the non-patrimonial heads of claim in terms of both Community Law and Convention Rights should be deleted so that they would not form part of any inquiry into the facts at a second hearing.

[30] These were the submissions of counsel for the respondent. Senior counsel for the petitioner relied on the dictum of Lord Hope of Craighead in Somerville that:

"the degree of precision and detail in written pleadings that has traditionally been looked for in other forms of action in Scotland is not to be looked for in petitions for judicial review...".

Given what Lord Hope of Craighead had to say about the matter of pleading specifically for the purposes of judicial review, senior counsel submitted that Lord Maxwell's observations in the professional negligence action of Jamieson were not in point. Besides if there were perceived to be some real prejudice to the respondent the remedy lay in chapter 58 of the Rules of the Court of Session which empowered the Court to order further specification to be given [Somerville v Scottish Ministers 2008 SC (HL) 45 at § 65 per Lord Hope of Craighead; RCS 58.9(iv)-(vii)].

[31] On the question of damages, I have come to the view that the petitioner's claim for payment of £170,000 is irrelevant. I agree with counsel for the respondent the petitioner has not demonstrated and indeed does not offer to demonstrate that UKBA's understanding of the Council Directives is entirely devoid of merit. I also agree that just satisfaction in relation to the alleged violation of Convention Rights would, on the basis of the petitioner's averments and productions, be a declarator by the Court. I have come to this conclusion for a number of reasons. The petitioner has had the benefits associated with education and employment in the United Kingdom while admittedly present unlawfully and working illegally. The petition does not offer to prove that there was and is any obstacle whatsoever to the petitioner returning to Ghana to enjoy his family life and the opportunities he previously had for employment there. The delay in resolving this matter, assuming the petitioner's argument on the merits to be correct, has been caused substantially by the petitioner's delay in claiming asylum and, latterly, in bringing the matter into Court. He apparently did nothing for more than two years after he became rights of appeal exhausted at the end of 2008; and it seems to have taken him four months to lodge his further submissions in person in 2011. If, contrary to the foregoing, I had been persuaded that the petition was well-found and the claim for payment relevantly stated, then I should also have taken the view that the averments of loss are set out with sufficient precision to give the respondent adequate notice of the heads and quantum of the claim. I should not have excluded any matters from probation for lack of specification; and I should not have ordered further specification to be given before allowing the petitioner an opportunity to establish his loss by evidence at a second hearing.


[32] As matters stand however there will be no second hearing because I have been persuaded that the petition has no merit. I shall repel the petitioner's pleas-in-law. I shall repel the respondent's pleas 4, 5 and 6 as superseded on the view that those pleas are contingent on the merits. I shall sustain pleas 1, 2 and 3 for the respondent. These pleas seek dismissal and absolvitor and are possibly not best framed for disposing of a judicial review application: but I understand the pleas to be directed to the merits and on that view I shall sustain those pleas and simply refuse the petition reserving all questions of expenses.

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