R v Secretary of State for the Home Department, ex parte Iyadurai
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1998 |
| Date | 10 June 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Lord Woolf MR Auld, Buxton LJJ
M S Gill and Miss V Miszkiel for the applicant
D Pannick QC and Miss L Giovannetti for the respondent
Cases referred to in the judgments:
R v Governor of Pentonville Prison ex parte FernandezWLRUNK [1971] 1 WLR 987: [1971] 2 All ER 691.
San GiorgioUNK [1983] ECR 3595: [1985] 2 CMLR 65.
R v Home Secretary ex parte BugdaycayELR [1987] 1 AC 514: [1987] Imm AR 250.
R v Home Secretary ex parte SivakumaranELR [1988] AC 958: [1988] Imm AR 147.
T v Secretary of State for the Home DepartmentELR [1996] AC 742: [1996] Imm AR 443.
in re H (Minors)WLRUNK [1997] 2 WLR 563: [1997] 2 All ER 225.
R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569: [1997] Imm AR 442.
Mohammed Kerrouche v Secretary of State for the Home Department [1997] Imm AR 610.
R v Secretary of State for the Home Department ex parte Astrit Ethemi and Besnik Demiraj [1998] Imm AR 147.
Adan v Secretary of State for the Home DepartmentWLR [1998] 2 WLR 702: [1998] Imm AR 338.
R v Secretary of State for the Home Department ex parte Thayaparan Iyadurai (unreported, QBD, 19 March 1998).
Asylum-certified case-removal of applicant proposed to Germany — whether Secretary of State entitled to conclude Germany a safe country — the limit of the obligations of the Secretary of State upon enquiry — whether Germany required too high a standard of proof for an applicant to establish a well-founded fear of persecution — difference in approach to the Convention — consideration of ‘the margin of appreciation’ as set out in Kerrouche. Asylum and Immigration Act 1996 s.2.
Renewed application for judicial review, following refusal by Jowitt J, of the decision by the Secretary of State to decline to consider substantively the applicant's claim for asylum and return him to Germany as a safe third country. It was argued before the court that on the evidence before him the Secretary of State's conclusion that Germany was a safe third country for the purposes of the 1996 Act was unreasonable. It was contended that the German courts did not follow the guidance by Lord Keith in Sivakumaran: counsel criticised the use of the term ‘margin of appreciation’ as employed in Kerrouche to describe the acceptable difference that might arise in the approach to the Convention adopted by different signatories.
Held:
1. The use of ‘margin of appreciation’ was infelicitous in relation to the Convention. It was inevitable however that procedures to implement the Convention would vary from country to country.
2. The Secretary of State in determining whether a country was a safe third country for the purposes of the 1996 Act had only to assure himself that a country did not adopt an approach which was outside the range of response of a contracting state acting in good faith to implement its obligations under the Convention. Care had to be taken not to subject the approach adopted in other states to an over-technical comparison.
3. In the instant case the Secretary of State had made enquiries and had been entitled to rely on the opinions of those whom he had consulted.
4. It was accordingly not unlawful or Wednesbury unreasonable for him to conclude that Germany was a safe third country.
The Master of the Rolls: The issue on this appeal is whether the Secretary of State can lawfully certify that Germany is a safe third country to which the applicant can be removed to have his claim for asylum determined, without having that claim determined in this country. The Secretary of State's authority to issue a certificate is contained in section 2 of the Asylum and Immigration Act 1996 (‘the 1996 Act’).
The background
It is not in dispute that the applicant is subject to section 2 of the 1996 Act. The submissions which Mr Gill makes on his behalf do not depend upon the applicant's personal circumstances. They depend upon the way claims for asylum are dealt with generally in Germany. In this situation, the applicant's personal circumstances are of no direct relevance to his case. However, the facts leading up to his application can be described briefly as follows. He is a citizen of Sri Lanka who is a Tamil. He was born on 4 May 1969. In February 1996, he travelled to Germany where he claimed asylum. His claim was refused and he left Germany and travelled to Italy where he remained one day. He then travelled to the United Kingdom hidden in the back of a lorry where he was discovered by immigration officers on 19 September 1997. The following day he claimed asylum. On 15 January 1998, Germany was asked to accept responsibility for examining his asylum claim under the Dublin Convention. This request was accepted by the German authorities on 26 January 1998. On 28 January 1998 the Secretary of State issued a certificate under section 2 of the 1996 Act and directed that he be removed to Germany. On 10 February 1998 he made an application for leave to move for judicial review. This was refused by Jowitt J on 19 March 1998. At the end of the hearing before this court, the court indicated that we would grant the renewed application for leave and determine the substantive applications for judicial review.
The relevant legislation
Section 2 of the 1996 Act is intended to enable the Secretary of State to remove expeditiously from this country claimants for asylum who have arrived in this country from a safe third country.
Section 2(1)(a) of the 1996 Act provides that the Secretary of State may remove an asylum claimant from the United Kingdom if:
‘The Secretary of State has certified that, in his opinion, the conditions mentioned in sub-section (2) below are fulfilled’.
The relevant conditions set out in section 2(2) 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; and
(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 (that is the Geneva Convention for the Protection of Refugees 1951).’
There is no dispute that conditions (a) and (b) are met in this case. The problem revolves around condition (c). The language of section 2 makes it clear that as long as the Secretary of State was entitled to form the opinion that condition (c) has been fulfilled, the courts cannot interfere with his decision. The 1996 Act does give an asylum claimant a right of appeal against the certificate to a special adjudicator on the ground that the conditions mentioned in section 2(2) are not fulfilled. However, that appeal cannot be exercised while the asylum claimant is in the United Kingdom (section 3) so it is of little practical value. It follows that this right of appeal is not an alternative remedy which prevents an applicant seeking judicial review.
Section 2 of the 1996 Act should be read with paragraphs 337 and 345 of the immigration rules as amended by Cmnd 3365. For the purpose of this judgment it is not necessary to refer to their terms which do not assist the applicant.
The approach to issues under section 2 of the 1996 Act
Both the applicant and the Secretary of State accept that the approach to section 2 was correctly indicated by this court in R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569. In that case it was stated as to section 2(2) of the 1996 Act that:
‘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 intervene’.
(At p 1579)
It was also stated in Canbolat in relation to section 2:
‘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. [that is protection against deportation] 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 and 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 abberrations. 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 procedure which there is no reason to anticipate would not be a real risk.’
(At p 1577)
In Canbolat the Secretary of State was unsuccessfully criticised for regarding France as a safe third country. This was not because of any criticism of French substantive law, but because of the danger of asylum seekers not receiving a proper opportunity to have their claims determined in accordance with French law and the Convention. In Kerrouche v Secretary of State for the Home Department [1997] Imm AR 610 the objection which was taken in relation to France (which failed) was that France took a narrower view of what constituted a political crime than the courts of this country. This court did not regard that factor as being decisive in determining whether France was a safe third country in the terms of the Convention. It said:
‘Although it is desirable that the approach to the...
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