R v Secretary of State for the Home Department, ex parte Adan

JurisdictionEngland & Wales
Judgment Date23 July 1999
Judgment citation (vLex)[1999] EWCA Civ J0723-13
Date23 July 1999
CourtCourt of Appeal (Civil Division)
Docket NumberFC3 1999/6323/4 and QBCOF 1999/0082/4

[1999] EWCA Civ J0723-13





Royal Courts of Justice


London WC2


The Master of the Rolls

(Lord Woolf)

Lord Justice Laws

Lord Justice Mance

FC3 1999/6323/4 and QBCOF 1999/0082/4

QBCOF 1999/6078/4

QBCOF 1999/0040/4

The Queen
The Secretary of State for the Department
(Ex Parte Lulomar Adan)


The Queen
The Secretary of State for the Home Department
(Ex Parte Sittampalan Subaskaran)


The Queen
The Secretary of State for the Home Department
(Ex Parte Hamid Aitseguer)

MR N BLAKE QC and MS S HARRISON (Instructed by Messrs E Edwards Son & Noice, East Ham, London, E6 1DQ) appeared on behalf of Adan.

MR D PANNICK QC and MR S KOVATS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Secretary of State for the Home Department as respondent in cases 1999/6323/4, 1999/0082/4 and appellant in case 1999/0040/4.

MR A NICOL QC and MR M HENDERSON (Instructed by Messrs Howe & Co, Ealing, London, W5 2BS) appeared on behalf of the Aitseguer.

MR M GILL and MR C WILLIAMS (Instructed by Messrs Genga & Co, Wembley, Middx, HAO 2AJ) appeared on behalf of Aitseguer.


Friday 23 July 1999


This is the judgment of the court, prepared by Laws LJ.




These three cases raise an important question concerning the functions of the Secretary of State under the Asylum and Immigration Act 1996. They involve three asylum seekers. Each claims that he/she will be persecuted if returned to his country of origin: not by authorities of the State, but by others —"non-State agents". Two of the three arrived in the United Kingdom having first passed through Germany. The other had first passed through France. They claimed asylum here, but the Secretary of State decided (under statutory powers which we will set out) to return them respectively to France and Germany for substantive consideration of their claims. They assert that the laws of those countries are such that their applications for asylum will not be properly dealt with there, and accordingly that France and Germany are not safe third countries to which they may lawfully be returned. They say that France and Germany do not recognise persecution by non-State agents as qualifying for protection under the 1951 Geneva Convention on the Status of Refugees, at least if the State itself is not in any sense complicit in the persecution; and so, if they were returned to France and Germany, even if their cases were established on the facts, they would be liable to be returned to their countries of origin to face the very persecution they fear.


However on 23 June 1999 the Secretary of State notified the legal representatives of all three asylum seekers that he now intended to consider their asylum claims on their substantive merits, and thus not to return them to Germany or France. The asylum seekers were, perhaps unsurprisingly, content that this course be adopted. At the outset of the hearing the court indicated that it was prepared to consider and decide the substance of the appeals notwithstanding that from the individuals' point of view they had become academic. We shall give our reasons below for doing so.


Lul Adan is a citizen of Somalia. On 8 August 1997 she sought asylum in Germany. That application was refused on 25 August 1997 and she was required to leave Germany voluntarily or be forcibly deported to Somalia. On 5 October 1997 she arrived in the United Kingdom and claimed asylum here. Her case was that she was a member of a minority clan in Somalia, and feared persecution by the USC, who had killed members of her clan, and she herself had been abducted. The USC was an armed camp which had overthrown President Barre in January 1991. Mogadishu had been divided between the USC and another armed camp, the SNF. All forms of legitimate government in Somalia had broken down. On 3 February 1998 the Secretary of State issued a request to Germany, under the material provisions of the Dublin Convention, to accept responsibility for considering Lul Adan's asylum claim, and Germany did so on 13 February 1998. On 19 February 1998 the Secretary of State refused her asylum application and certified that she was returnable to Germany as a safe third country.


Hamid Aitseguer is a citizen of Algeria. He travelled to France in January 1998, and thence to the United Kingdom where he arrived on 9 February 1998. He claimed asylum on arrival. His case was that terrorists opposed to the Algerian government had exacted protection money from his father, having threatened to bomb the family cafe and kill the staff. He had been threatened by Islamic fundamentalist groups when he was working as a teacher in a technical college. Later he found that his name had been placed on a "hit list" by Islamic terrorists. Other people on the list were later killed. Later still he witnessed a bomb explosion at a pumping station where he was working. He gave other details. In short he would be at risk of his life in the hands of the terrorists if returned to Algeria, and there was no possibility of seeking effective protection from the State authorities there. On 12 February 1998 the Secretary of State requested the French authorities to accept responsibility for determining his claim, and they did so on 20 April 1998. On 21 April 1998 the Secretary of State refused his asylum claim and certified that he was returnable to France as safe third country.


Sittampalan Subaskaran is a Sri Lankan Tamil asylum-seeker. On 11 August 1997 he claimed asylum in Germany. That was refused on 22 October 1997. A notice of appeal to the Dresden Administrative Court was issued on his behalf but he left Germany before the appeal was heard. He arrived in the United Kingdom on 19 February 1998 and applied for asylum here. In June 1998 the Dresden Administrative Court dismissed his appeal in his absence, holding that "the action is unfounded since the plaintiff does not have a right to be recognised as a person entitled to political asylum". His case for asylum here was that he feared persecution by the LTTE (the "Tamil Tigers") if he were returned to Sri Lanka. They had earlier demanded money of him, required him to dig bunkers for them, extorted 100,000 rupees from his father, and pressurised him to join them at a time when the Sri Lankan army was approaching Madukulam. He was also detained by the army and forced to identify LTTE members. Later he was detained again, in Colombo, where he was hung upside down and subjected to other violent ill-treatment. On 14 August 1998 the Secretary of State refused his asylum claim and certified that he was returnable to Germany (which had accepted responsibility for the examination of his claim under the Dublin Convention).


On 29 April 1998 Turner J granted leave to move for judicial review to Lul Adan, but on 24 November 1998 the Divisional Court (Rose LJ and Mitchell J, reported at [1999] IAR 114) dismissed her application and refused leave to appeal. Leave was subsequently granted by this court on 22 January 1999. On 18 December 1998 Sullivan J allowed Aitsegeur's motion for judicial review, quashed the Secretary of State's certificate, and granted leave to appeal (reported at [1999] INLR 176). In Subaskaran's case Laws J refused judicial review leave at first instance on 4 November 1998, after hearing argument inter partes in court. He did so without taking any view as to the merits in principle of the "non-State agents" point vis-a-vis Germany, but because he considered on the material before him that the applicant's case barely raised a "non-State agents" argument on the facts. On 9 February 1999 this court granted Subaskaran's renewed application for judicial review leave and directed that the substantive proceedings be heard in the Court of Appeal. This direction has given rise to an issue touching this court's jurisdiction, which it is convenient to address at once.




At an interlocutory hearing in this court on 11 June 1999 a submission was made, by Mr Nicol QC for Aitsegeur, that the Court of Appeal lacked the jurisdiction to entertain the substantive judicial review in Subaskaran's case, and that after granting leave it was accordingly obliged to remit the matter for hearing in the Crown Office List. Mr Nicol had understandable tactical reasons for raising this issue at the time, but they have fallen away since the Secretary of State's decision not to remove the appellants to France and Germany. However it seemed to this court that the matter was of some considerable importance, and we invited argument upon it from Mr Nicol and from Mr Gill for Subaskaran. We are grateful to both counsel for their assistance on the point, and also to Mr Pannick QC for the Secretary of State.


It is uncontested that an applicant who has been refused leave (now permission) to apply for judicial review after a hearing at first instance, other than in a criminal cause or matter, may renew his application to the Court of Appeal. Order 59 Rule 14(3) provides:

"Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal."


Mr Nicol submitted that the jurisdiction to issue the prerogative orders is conferred by s.29 of the Supreme Court Act 1981 upon the High Court, to which by s.31 applications for judicial review are to be made. No such jurisdiction is conferred on the Court of...

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