Kerrouche v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1997 |
| Date | 31 July 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Lord Woolf MR Roch, Henry LJJ
A Nicol QC and J Gillespie for the applicant
N Pleming QC and R Tam for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte BugdaycayELR [1987] AC 514: [1987] Imm AR 250.
R v Secretary of State for the Home Department ex parte Tania Stefan and ors [1995] Imm AR 409.
Khalif Abdi and anr v Secretary of State for the Home Department [1996] Imm AR 288.
T v Secretary of State for the Home DepartmentELR [1996] AC 742: [1996] Imm AR 443.
R v Secretary of State for the Home Department ex parte Mohammed Kerrouche (unreported, QBD, 20 December 1996).
Gulay Canbolat v Secretary of State for the Home Department [1997] Imm AR 442.
Anthonypillai Robinson v Secretary of State for the Home Department [1997] Imm AR 568.
Asylum — safe third country — exclusion clause in the Convention — serious non-political crime — third country adopted a narrower interpretation than the United Kingdom of what constituted a political crime — whether third country therefore not safe — whether absence of a suspensive right of appeal rendered third country unsafe. HC 395 paras. 345, 347: United Nations Convention relating to the status of refugees (1951) Protocol (1967) arts. lF(b), 33(1).
Appeals — point not raised before special adjudicator — ambit of appellate authorities' obligation to identify and consider the point — Robinson followed.
Appeals — extent of obligation of Secretary of State to disclose material within his knowledge — duty not knowingly to mislead adjudicator.
Appeal from the refusal by Tucker J to grant judicial review of the determination by a special adjudicator dismissing the appellant's appeal against the refusal of the Secretary of State to consider substantively his application for asylum and to return him to France, a safe third country.
The appellant was a citizen of Algeria. In June 1993 he was, it seems, convicted in his absence of terrorism. He entered the United Kingdom with false documents in April or May 1995 from France where he had been living since September 1992 and, since March 1993, illegally. In April 1996 he was arrested in the United Kingdom by the anti-terrorist squad and served with notice of intention to deport on the grounds of national security. The appellant then claimed asylum. The decision to make a deportation order was withdrawn: the Secretary of State decided to return the appellant to France, concluding that France was a safe third country. On appeal a special adjudicator upheld the certificate of the Secretary of State. On application for judicial review Tucker J concluded that there had been nothing unlawful or perverse in the adjudicator's approach.
Before the Court of Appeal counsel argued that where a third country interpreted political crimes more narrowly than the United Kingdom, such a country could not be regarded as a safe country, nor could a country be considered safe that did not provide for a suspensive right of appeal.
The court also considered the extent to which a special adjudicator was obliged to consider a point not raised by the parties, and the extent of the Secretary of State's obligation to disclose material within his knowledge and relevant to issues raised in an appeal.
Held:
1. To render a third country unsafe, the difference in its approach to the interpretation of the Convention and the Protocol would have to be of such significance that it could be said that in making a decision affecting a particular applicant for asylum the third country would not be applying the principles of the Convention. For that to be the case the approach of the third country would have to be outside the range of tolerance which one signatory country, as a matter of comity, was expected to extend to another.
2. On the facts, that situation did not arise in the present case.
3. Following Canbolat, there was no requirement under the Convention that there should be a suspensive right of appeal.
4. Only if there were a readily discernible point did a special adjudicator or the Tribunal have any obligation to consider it, if it were not raised by the parties: the principles set out in Robinson would apply to hearings before a special adjudicator.
5. Following Abdi and Gawe the Secretary of State was under no general duty to give discovery of all the material on which he had concluded that a third country was safe, but he should not knowingly mislead a special adjudicator.
The Master of the Rolls: This is another appeal involving an asylum seeker. The appellant is an Algerian national who had been living illegally in France since about September 1992. In April or May 1995 he travelled to this country on false documents. He was arrested on 2 April 1996. He claimed asylum on the ground that he had a well-founded fear of persecution in Algeria. His case was that he feared that he would be treated as a member of a militant Islamic group opposed to the Government. He claims to have been wrongly convicted in his absence of terrorist offences including murder. Others convicted on the same charges have been sentenced to death but he does not know what sentence was passed in his case.
On 12 June 1996 a previous decision to deport the appellant was withdrawn and he was served with notice that he would be treated as an illegal entrant and removed to France. His claim for asylum was refused without consideration of its merits because the Secretary of State considered France a safe third country and accordingly had certified that his claim did not for this reason, raise any issue under the refugee Convention...
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