R v Secretary of State for the Home Department, ex parte Abdi ; Same v Same, ex parte Gawe
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Mustill,Lord Slynn of Hadley,Lord Lloyd of Berwick |
| Judgment Date | 15 February 1996 |
| Judgment citation (vLex) | [1996] UKHL J0215-1 |
| Date | 15 February 1996 |
| Court | House of Lords |
[1996] UKHL J0215-1
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Slynn of Hadley
Lord Lloyd of Berwick
House of Lords
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Lloyd of Berwick, which I have read in draft and with which I agree, I would dismiss these appeals.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick. For the reasons which he gives, I would dismiss these appeals.
My Lords,
The relevant facts and contentions are fully set out in the speeches of my noble and learned friends, and in the judgments delivered in the Court of Appeal. I need not repeat them, and will proceed directly to my conclusions.
On the first question concerning the suggested duty of the Secretary of State to disclose all material information, whilst I share the hesitation expressed by Neill L.J. I am persuaded that in the very special context of this abbreviated procedure no such duty can be implied, and therefore agree with the majority in the Court of Appeal and with the opinion of my noble and learned friend Lord Lloyd of Berwick.
I must however disagree on the remaining question, which, although arising in the context of this individual application for asylum, is in my judgment of very real general importance. It will be recalled that the only evidence adduced in support of the assertion by the Secretary of State that the claim for asylum was "without foundation" was a letter written on his own behalf to the following effect, at p. 420:
"The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention."
My Lords, to contend that such a statement is evidence sufficient to justify a finding favourable to the Secretary of State in his contest with the appellant before the Special Adjudicator amounts to this: that the Secretary of State knows what he is talking about and that the Adjudicator should take his word for it. True the procedure was truncated, and true also that hearsay evidence was admissible, but the procedure was none the less adversarial. Plainly the Secretary of State cannot be contending that, in the absence of express statutory provision, a bare statement of honest belief by one party to an adversarial procedure is sufficient to prove the fact asserted, and equally plainly the Secretary of State would shrink from conceding that a similar statement would be sufficient to carry the day for the appellant, the other party to the issue. It must therefore be the proposition that there is something unique in the position of the Secretary of State which transmutes a statement of belief into an item of evidence. No authority was cited in support of this notion, which I find disturbing, the more so for its distant echo of Liversidge v. Anderson [1942] 2 A.C. 206. I do not accept it, and since in this case nothing other than the letter was adduced in support of the decision under appeal I agree in this respect with the judgment of Steyn L.J. and with the opinion on this point of my noble and learned friend Lord Slynn of Hadley. I would allow the appeals.
My Lords
This appeal, with the leave of the Court of Appeal, raises important issues in relation to proceedings brought before Special Adjudicators by those seeking asylum in this country.
The facts of the two appeals are fully set out in the judgment of Neill L.J. to which I refer. For present purposes it is sufficient to summarise them. Both appellants lived in Somalia of which they were nationals. They left Somalia, one in 1992 the other in 1993, and they went via one or more countries to Spain where they stayed, one for three days and one for eight days. On 25 November 1993 they flew to London where they claimed asylum on the grounds that they feared persecution in Somalia. Each received a letter from the Asylum Division of the Immigration and Nationality Department of the Home Office reciting the claim for asylum and continuing:
"However, Somalia is not the only country to which you can [be] removed. You arrived from Spain where you spent [three] [eight] days. You are, under paragraph 8(1)( c) of Schedule 2 to the Immigration Act 1971, returnable to Spain which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.
The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences of returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention."
Having referred to paragraph 180K of the Immigration Rules the letter continued:
"The Secretary of State can find no grounds for departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention."
In Mr. Abdi's case, counsel having appeared for the appellant and the respondent, the Special Adjudicator, Mr. John Fox, found that the appellant had had an opportunity to claim asylum in Spain but he had chosen not to do so. As to whether Spain was a safe country he said that Mr. J. Harper of the Home Office had "relied on the facts as set out in the letter of 29 November 1993," the letter referred to above. Mr. Fox concluded "I am satisfied from the totality of the evidence before me that Spain will comply with her obligations under the 1951 Convention."
Mr. Gawe appeared in person on his appeal. The Special Adjudicator. Mr. V. Callender, directed himself that his first task was to decide whether or not he agreed with the Secretary of State's certificate. He rejected an argument that to refuse to consider the claim substantively was a breach of the Convention and he held that the onus on the Secretary of State, of showing that paragraph 180K was satisfied, was:
"discharged by the statement of the Secretary of State's letter of refusal dated 1 December 1993 and in the absence of any material before me to indicate that Spain might not fulfil her Convention obligations there is no such material.… there is no evidence before me to suggest that Spain is not a safe country within the provisions of Paragraph 180K of H.C.725."
He too found that Mr. Gawe had had an opportunity to apply for asylum in Spain and that he had not done so.
On applications for judicial review Sedley J. quashed both the certificates of the Secretary of State and the decisions of the Special Adjudicators. The Court of Appeal held that the Secretary of State's certificate should not be quashed and allowed the appeal to that extent. Neill L.J., though troubled about aspects of the procedure adopted, and Gibson L.J. restored the orders of the Special Adjudicators. Steyn L.J. would have quashed their decisions.
Following the applications for judicial review the Secretary of State agreed to review their cases on the merits so that the outcome of these appeals will not directly affect the appellants. The appeals do, however, raise what counsel for the Secretary of State in the Court of Appeal accepted ( per Steyn L.J.) was a question of fundamental importance and a very difficult case.
By Article 33 of the Geneva Convention relating to the Status of Refugees of 1951 the contracting States, including the United Kingdom, undertook not to expel or return a refugee 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."
By Section 8(1) of the Asylum and Immigration Appeals Act 1993
"A person who is refused leave to enter the United Kingdom under the [Immigration Act 1971] 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."
Special Adjudicators are those adjudicators appointed under the 1971 Act who are assigned by the Lord Chancellor to hear asylum appeals, being appeals brought under sub-sections 8(1) to (4) of the 1993 Act; the procedures laid down in the 1971 Act are modified in a number of ways when Special Adjudicators are dealing with asylum appeals. Thus, in particular. Rule 8(1) of the 1984 Rules which requires the respondent to an immigration appeal to cause to be prepared "a written statement of the facts relating to the decision or action in question and the reasons therefor" and to supply it to the adjudicator and the appellant does not apply in relation to asylum appeals under section 8.
Moreover, paragraph 5(4) of Schedule 2 to the 1993 Act authorises special provision to be made by rules of procedure in respect of appeals under inter alia section 8(1) of the 1993 Act in cases where the Secretary of State, in dealing with a person's claim that his removal would be contrary to the United Kingdom's obligations under the Convention, certifies that...
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