R v Secretary of State for The Home Department, ex parte Mbanja
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1999 |
| Date | 01 July 1999 |
| Court | Queen's Bench Division |
Court of Appeal
Butler-Sloss, Pill LJJ Lord Lloyd of Berwick
M S Gill and A Dias for the appellant
M Shaw for the respondent
Cases referred to in the judgments:
R v Home Secretary ex parte BugdaycayELR [1987] AC 514: [1987] Imm AR 250.
R v Ministry of Defence ex parte SmithELRUNK [1996] QB 517: [1996] 1 All ER 257.
R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569: [1997] Imm AR 442.
R v Secretary of State for the Home Department ex parte Gashi [1999] Imm AR 415.
R v Secretary of State for the Home Department ex parte James Mbanja [1999] Imm AR 63.
Asylum certified case Secretary of State proposed returning appellant to Belgium for consideration of substantive claim whether Secretary of State entitled to conclude Belgium was a safe third country.
Appeal from Dyson J who had refused leave to move for judicial review of the Secretary of State's decision to send the appellant, a citizen of Kenya, to Belgium for the consideration of his claim for asylum, the Secretary of State considering Belgium to be a safe third country.
Counsel challenged that conclusion by the Secretary of State: he maintained that the initial procedures in Belgium, some of which had occasioned concern to UNHCR, made it unreasonable for the Secretary of State to conclude as he had.
Held:
1. The Secretary of State had made enquiries and was entitled, on the evidence before him, to conclude as he had.
2. It was not for the Secretary of State to ask whether the UNHCR was satisfied with all aspects of the Belgian procedure, but whether the appellant would be sent to another country otherwise than in accordance with the 1951 Convention.
Pill LJ: This is an appeal against a decision of Dyson J given on 7 September 1998 whereby he refused an application by Mr James Waweru Mbanja (the appellant) to quash a decision of the Secretary of State for the Home Department (the respondent) dated 3 April 1998 to issue a certificate under section 2 of the Asylum and Immigration Act 1996 (the 1996 Act) authorising the removal of the appellant from the United Kingdom to Belgium. The appellant also sought unsuccessfully to quash a decision of the immigration officer dated 24 April 1998 to refuse him leave to enter the United Kingdom.
The appellant is a Kenyan national who claims asylum in the United Kingdom under article 1 of the 1951 Convention relating to the status of refugees (as amended) (the 1951 Convention). He claims to have a well-founded fear of persecution in Kenya on account of his political opinions. He arrived in London by Eurostar from Brussels on 2 November 1997 having flown there from Kenya. It is accepted on his behalf that he had an opportunity to claim asylum in Belgium but did not do so. The Belgian authorities have accepted responsibility for the applicant under article 6 of the Dublin Convention of 1990. By the letters complained of, the respondent issued a certificate under section 2 of the 1996 Act and notified the applicant that his claim was to be refused without substantive consideration because he would be returned to Belgium.
The Dublin Convention of 1990, made between the states of the European Union, provides means for determining the state responsible for examining applications for asylum under the 1951 Convention lodged in one of the Member States. Article 6 provides that when it can be proved that an applicant for asylum has irregularly crossed the boarder into a Member State by land, sea or air, having come from a non-Member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum. Section 2 of the 1996 Act provides insofar as is material:
(1) Nothing in section 6 of the Act of 1993 (Protection of Claimants from Deportation etc) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if
(a) the Secretary of State has certified, in his opinion, the conditions mentioned in sub-section (2) below are fulfilled;
(2) The conditions are
(a) that the person is not a national or citizen of the country or territory to which he is to be sent;
(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion;
(c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.
Article 33 of the 1951 Convention, to which the United Kingdom and Belgium are parties, provides:
Prohibition of Expulsion or Return (Refoulement).
1. No contracting State shall 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.
The issue is whether the respondent was entitled to issue a certificate under section 2(2) of the 1996 Act. Upon an application of section 2(2)(c) of the Act, that depends on whether the Belgian Government would not send the appellant to Kenya or another country otherwise than in accordance with the 1951 Convention.
In the words customarily used, was Belgium a safe third country? The same question arose, with respect to France, in R v Secretary of State for the Home Department & anr ex parte CanbolatWLR [1997] 1 WLR 1569. Giving the judgment of this court, Lord Woolf MR stated at page 1577E:
Section 2 [of the 1996 Act] requires the Secretary of State to certify the conditions mentioned in subsection (2) are fulfilled. The relevant condition which he had to certify was fulfilled which was in issue was that the government of [France] would not send [her] to another country or territory otherwise than in accordance with the Convention. The language of the condition is unqualified. This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by section 6 of the Act of 1993. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations. All that can be expected and therefore all that Parliament could have intended should be in place prior to the grant of a certificate was a system which can be expected not to contravene the Convention. What is required is that there should be no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention. The unpredictability of human behaviour or the remote possibility of changes in administrative law or procedures which there is no reason to anticipate would not be a real risk.
The court went on to underline that the opinion mentioned in section 2 of the 1996 Act was that of the Secretary of State and expressed the test in this way, at page 1579D to H:
The identification of the right test is however necessary when considering whether the decision of the Secretary of State was one to which he was entitled to come on the material which was before him.
In R v Ministry of Defence ex parte SmithELR [1996] QB 517, 554 Sir Thomas Bingham MR accepted as an accurate distillation of the principles laid down by the authorities a submission of Mr Pannick which is in these terms:
The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
When considering issues in relation to asylum seekers, the court is necessarily concerned with issues as to human rights and we would regard Mr Pannick as accurately in that passage indicating the correct approach to be applied here.
It is also important to bear in mind that it is for the Secretary of State to evaluate the material. If the Secretary of State could properly come to the decision which he did on that material then this court cannot interfere. He is the person who has to form the opinion. However in order to form the opinion, it is necessary for him to take such steps as are reasonable in the circumstances to acquaint himself with the relevant facts.
For the applicant, Mr Gill submits that the Belgian procedure for dealing with the admissibility of claims for political asylum is so defective as to give rise to a real risk that the appellant's claim for asylum will not be considered in accordance with the 1951 Convention and that the Secretary of State cannot reasonably be satisfied that the condition in section 2(2)(c) of the 1996 Act is satisfied. Claims for asylum are first made to the Directorate for Alien Affairs (DAA) an arm of the Ministry of Internal Affairs. The flaws in the Belgian admissibility procedure are evidenced, it is submitted, by the fact that about 90% of all applications for asylum are rejected by the DAA at the admissibility stage, that is, they are held not even to merit full consideration. The procedure provides for an appeal to the Commissioner General (CG). He and his deputies are required to make their decisions and issue their opinions with absolute independence and their posts are incompatible with...
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