R v Secretary of State for the Home Department, ex parte Adan
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE |
| Judgment Date | 19 December 2000 |
| Judgment citation (vLex) | [2000] UKHL J1219-1 |
| Date | 19 December 2000 |
| Court | House of Lords |
[2000] UKHL J1219-1
Lord Slynn of Hadley
Lord Steyn
Lord Hutton
Lord Hobhouse of Wood-borough
Lord Scott of Foscott
HOUSE OF LORDS
My Lords,
I have had the advantage of reading drafts of the speeches of my noble and learned friends Lord Steyn and Lord Hobhouse of Woodborough. I gratefully adopt Lord Steyn's summary of the relevant facts and of the Statutory and Convention provisions involved. In the light of their opinions my own view can be stated more shortly.
It is common ground that if each of the appellants were sent back to the countries from which immediately they came to the United Kingdom, Germany would probably send back Adan to Somalia and France would probably send back Aitseguer to Algeria. Germany would do so because it considered that there was no state or government in Somalia which could carry out the persecution. France because it considered that the "persecution" which he feared was not tolerated or encouraged or threatened by the state itself. Thus in each case it was not conduct for which the state was accountable. It is also common ground that the United Kingdom would not send them back directly to Somalia and Algeria respectively if it was accepted that each was outside the country of his nationality owing to "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (see Geneva "Convention relating to the status of refugees" 1951 Article 1 A). Thus even though the persecution was not threatened by the state or by an agency for which the state was responsible, Adan would not be sent back if the threat was from a rival clan to that to which Adan belonged and if the threat to Aitseguer was from the Groupe Islamique Armé in Algeria.
It appears that the Secretary of State accepts that under Article 33 of the Geneva Convention which provides that the United Kingdom shall not "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," such threats may come from agencies other than the state. In other words that what is sometimes called the "protection" theory rather than the "accountability" is adopted. On the basis of the decision of the House [ Adan v. The Secretary of State [1999] 1 A.C. 293] the Secretary of State's view is not only legitimate but right. He also accepts that for him to send back a person to a state which would send the applicant to the country where he feared persecution would itself be a breach of his obligations. (See re Musisi ex parte Bugdaycay [1987] A.C. 514.)
The present case however turns on section 2(2) (c) of the Asylum and Immigration Act 1996 which allows a person who has made a claim for asylum to be removed from the United Kingdom if, inter alia, the Secretary of State certifies that in his opinion
"the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention".
The sole or core question is therefore whether as a matter of law it is open to the Secretary of State to certify that in his opinion that condition has been fulfilled. Can he as a matter of law say that the government of Germany and France would not send Adan or Aitseguer back respectively to Somalia and Algeria "otherwise than in accordance with the Convention". Unfortunately there is a lack of uniformity in the interpretation of this provision between states.
As is apparent from the brief facts I have stated Germany and France take a very different view from the United Kingdom as to who as a matter of interpretation can be the perpetrators of the prosecution, a fear of which is relied on by the applicant, though the German and French positions may themselves have differences. It seems thus that if there is no recognised state in the territory (Germany) or no government which tolerates or encourages the persecution (France) the respective government will send the claimants back even if acts are threatened by others which, if done by the state, would amount to persecution within the meaning of the Convention. The reason is that in such cases they do not see that there is any persecution for which the state is accountable. The United Kingdom on the other hand will regard a threat of persecution in the territory on one of the specified grounds by a body other than the state and which is not tolerated or encouraged by the state as constituting a sufficient threat within the Convention.
The question thus narrows-may the Secretary of State say that he is satisfied that the other state will not send the applicant to another country "otherwise than in accordance with the Convention" if the other state adopts an interpretation of the Convention which the Secretary of State rejects but which the Secretary of State accepts is a reasonably possible or legitimate or permissible or perhaps even arguable interpretation.
It is understandable that comity between nations, parties to the Convention, might be seen to encourage that view but in my opinion that view is wrong. The question is not whether the Secretary of State thinks that the alternative view is reasonable or permissible or legitimate or arguable but whether the Secretary of State is satisfied that the application of the other state's interpretation of the Convention would mean that the individual will still not be sent back otherwise than in accordance with the Convention. The Secretary of State must form his view as to what the Convention requires (interpreted if his view is challenged by the courts). His is the relevant view and the relevant obligation is that of the United Kingdom. It seems to me that the Secretary of State may not send back an applicant if the Secretary of State considers that the other state's interpretation would lead to an individual being sent back by that state to a state where he has established a fear of persecution which the Secretary of State finds to be covered by the Convention.
Just as the courts must seek to give a "Community" meaning to words in the Treaty of Rome ("worker") so the Secretary of State and the courts must in the absence of a ruling by the International Court of Justice or uniform state practice arrive at their interpretation on the basis of the Convention as a whole read in the light of any relevant rules of international law, including the Vienna Convention on Treaties. The Secretary of State and the courts of the United Kingdom have to decide what this phrase in this Treaty means. They cannot simply adopt a list of permissible or legitimate or possible or reasonable meanings and accept that any one of those when applied would be in compliance with the Convention.
In my view it is impossible for the Secretary of State to certify that the condition in section 2(2)(c) is satisfied, that the other state would not send the applicant back "in contravention of the Convention", if the interpretation of the other state and its application to particular facts would result in the Convention being applied in a way which the Secretary of State himself was satisfied was not in accordance with the Convention.
The phrase "otherwise than in accordance with the Convention" does not mean "otherwise than in accordance with the relevant state's possible reasonable, permissible or legitimate view of what the Convention means".
That persecution may be by bodies other than the state, for the purposes of the Geneva Convention, was accepted in Adan (supra). Nothing has been said in the present case which suggests that that might be wrong and in my view it was plainly correct. If Article 33 had intended his obligation to be limited to cases where a state carried out or tolerated the persecution, Article 33 would have said so. The Secretary of State must apply that interpretation to the application of section 2 (2) (c) of the 1996 Act as he must to his own obligation under Article 33 of the Convention.
In section 2(2)(c) it is his obligation not to send back the applicant which is in issue. If some other states interpret the Convention differently in a way which he considers not to be in compliance with the Convention he must carry out his obligation in the way in which he is advised or is told by the courts is right. To do so is not in any way contrary to the comity of nations or offensive to other states who interpret it differently and it does not begin to suggest malafides on their part.
There may be cases in which an interpretation adopted by the Secretary of State can be carried out in different ways and in such a case it may well be that the Secretary of State could accept that such other ways were in compliance with the Convention. But the Secretary of State is neither bound nor entitled to follow an interpretation which he does not accept as being the proper interpretation of the Convention.
I have no doubt that the Court of Appeal reached the right conclusion and I therefore agree with Lord Steyn and Lord Hobhouse that these appeals should be dismissed.
My Lords,
There are two appeals before the House from decisions on separate applications for judicial review, which were heard together and determined in a single judgment in the Court of Appeal: Reg. v. Secretary of State for the Home Department, Ex parte Adan; Reg. v. Secretary of State for the Home Department, Ex parte Aitsegeur [1999] 3 W.L.R. 1274 The central question is whether under section 2(2)(c) of the ...
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