R v Secretary of State for The Home Department, ex parte Salas
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 2000 |
| Date | 19 July 2000 |
| Court | Queen's Bench Division |
Queen's Bench Division
Sullivan J
A Nicol QC and H Southey for the applicant
J Howell QC and M Shaw for the respondent
Cases referred to in the judgment:
INS v Stevic [1984] 104 Supreme Court 2489.
INS v Cardoza Fonseca [1987] 107 Supreme Court 1207.
in the matter of Pula 19 IN December 1987.
R v Home Secretary ex parte SivakumaranELR [1988] AC 958: [1988] Imm AR 147.
Deghani v Minister of Employment and ImmigrationUNK [1993] 1 SCR 1053.
Davila-Bardales v INSECAS [1994] 27 F. 3d 1.
in the matter of Kasinga Interim Decision 3278, 1996.
R v Secretary of State for the Home Department ex parte Canbolat [1997] Imm AR 442.
Adan v Secretary of State for the Home DepartmentWLR [1997] 1 WLR 1107: [1997] Imm AR 251.
R v Secretary of State for the Home Department ex parte Arias [1997] Imm AR 385.
R v Secretary of State for the Home Department ex parte AdanWLR [1999] 3 WLR 1274: [1999] Imm AR 521.
R v Secretary of State for the Home Department ex parte Mbanja [1999] Imm AR 63.
Gashi v Secretary of State for the Home Department [1999] Imm AR 415.
Asylum — citizen of Ecuador — arrived in United Kingdom via USA — Secretary of State decided to return applicant to USA for substantive consideration of his claim — whether the USA a safe third country notwithstanding the application of different standards of proof — whether looking at the practical application of the administrative procedures there was any real danger of refoulement. United Nations Convention relating to the status of refugees (1951) Protocol (1967) arts 1, 33.
The applicant was a citizen of Ecuador who sought judicial review of the decision of the Secretary of State to return him to the USA for substantive consideration of his claim.
Counsel for the applicant argued that the Secretary of State had erred in law in designating the USA as a safe third country. The American law, he asserted, was not consistent with the true meaning of the Convention and in particular failed to recognise the relationship between articles 1 and 33: moreover the procedures adopted for assessing claims, which involved secondary inspection, detention and an absence of legal assistance, were unfair and gave rise to a real risk of refoulement.
The court examined in detail the procedures adopted in America.
Held
1. That there were differences in the legal approach adopted in the USA was not the end of the matter. It was necessary to consider the practical application of the procedures.
2. On that basis there was no real risk of refoulement.
3. The absence of legal representation and the possibility of detention did not increase that risk.
Sullivan J
Introduction
1. The applicant is a citizen of Ecuador. He arrived in the United Kingdom on 12 November 1998, having left Ecuador on 11 November and travelled via Miami in the United States of America. Whilst in the airport at Miami he had an opportunity to contact United States officials. On arrival in the United Kingdom he was interviewed and claimed asylum. Later the same day his claim was certified by the Secretary of State under section 2 of the Asylum and Immigration Act 1996 and refused without substantive consideration of its merits on the ground that he could safely be returned to the United States. Section 2 enabled the Secretary of State to adopt that course if he certified ‘that in his opinion’ the three conditions mentioned in subsection (2) were satisfied in the applicant's case. There is no dispute as to conditions (a) and (b). Condition (c) is as follows:
‘that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.’
2. The Convention referred to is the 1951 United Nations Convention relating to the Status of Refugees.
3. On 18 November 1998 the applicant applied for permission to apply for judicial review of the certificate dated 12 November on the ground that the Secretary of State had erred in concluding that condition (c) was fulfilled. Permission to apply for judicial review was granted in December 1998.
4. Since the initial decision a considerable amount of material has been supplied to the Secretary of State by the applicant's solicitors. The Secretary of State has responded to that material and has sought to answer various concerns that have been expressed on behalf of the applicant at different stages. He remains of the view that there is:
…‘no real risk that the applicant will be returned to Ecuador otherwise than in accordance with the Convention.’
5.—see the Court of Appeal's decision in R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569 at page 1577G.
6. On behalf of the applicant, Mr Nicol QC submits that the Secretary of State's conclusion is erroneous in law on two grounds. First, the law of the United States is not consistent with the true meaning of the Convention, in particular it fails to recognise the relationship between articles 1 and 33 of the Convention and so fails to secure protection against refoulement under article 33 for all of those who are refugees within article 1. Second, the procedures for determining asylum claims in the United States are so unfair in three particular respects, secondary inspection, legal representation and detention, that there is a real risk that the applicant may be removed from the United States in breach of the Convention.
7. Ground 1: US law
8. The Secretary of State has obtained a lengthy and detailed report, followed by supplementary reports, on the approach of the United States to the Convention since it became a party in 1968 to the 1967 New York Protocol relating to the status of refugees from Professor Martin of the University of Virginia. For the most part the contents of Professor Martin's reports are not disputed by the academics instructed on behalf of the applicant, Professor Musalo of the University of California and Professor Anker of Harvard Law School.
9. There are no material differences for present purposes between the definition of refugee in section 101a(42)(A) of the Immigration and Nationality Act, (INA), and the definition of refugee in article 1 of the Convention.
10. In assessing whether the applicant is a refugee United States officials and tribunals will apply a standard of proof akin to that applied in the United Kingdom, ‘a reasonable possibility’ or ‘a real chance’ of persecution. See the Supreme Court's decisions in INS v Stevic 104 Supreme Court 2489 (1984) and INS v Cardoza Fonseca 107 Supreme Court 1207 (1987), both of which were referred to in the speech of Lord Keith in R v Home Secretary ex parte SivakumaranELR [1988] AC 958 at 993. This "asylum standard" of proof is lower than the balance of probabilities standard. In the United Kingdom an applicant who is able to establish to this lower standard of proof that he is a refugee is entitled to asylum; that is to say to protection from refoulement under article 33 of the Convention. See the speech of Lord Goff at page 1001 of Sivakumaran and Adan v Secretary of State for the Home DepartmentWLR [1997] 1 WLR 1107 per Simon Brown LJ at 1116B to F.
11. In the United States the position is different. A person who qualifies as a refugee may be granted asylum by the Attorney-General under section 208(b)(1) of the INA. There are certain mandatory bars to the grant of asylum, for example, if the alien is a danger to the security of the United States, but it is agreed that none of those mandatory grounds for refusing asylum apply to the applicant. Under section 208(b)(2)(C) the Attorney-General may by regulation establish further grounds for refusal.
12. Article 33 of the Convention is embodied in United States domestic legislation by section 241(b)(3)(A) of the INA which provides, subject to certain exceptions which are not relevant for present purposes:
‘The Attorney-General may not remove an alien to a country if the Attorney-General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality membership of a particular social group, or political opinion.’
13. In Stevic the Supreme Court decided that a refugee did not qualify for mandatory withholding of deportation under what is now section 241 unless he could show ‘a clear probability of persecution’. In Cardoza Fonseca the Supreme Court confirmed that different standards of proof were to be applied to the alien claiming to be a refugee, who had to establish a well-founded fear of persecution; and to the alien claiming entitlement to withholding of deportation, who had to show a clear probability of persecution.
14. The Court rejected the argument of the INS that a dual standard was anomalous:
‘This argument surely fails because it does not take into account the fact that an alien who satisfies the applicable standard under [section 101] does not have a right to remain in the United States; he or she is simply eligible for asylum if the Attorney General, in his discretion, chooses to grant it. An alien satisfying [section 241's] stricter standard, in contrast, is automatically entitled to withholding of deportation…We do not consider it at all anomalous that out of entire class of “refugees” those who can show a clear probability of persecution are entitled to mandatory suspension of deportation and eligible for discretionary asylum, while those who can only show a well-founded fear of persecution are not entitled to anything, but are entitled to the discretionary relief of asylum.’
see page 1219.
15. Mr Nicol submits that in not conferring protection against refoulement under article 33 upon all those who qualify as refugees under article 1 of the Convention (save where the exclusions under articles 1 and 33(2) apply) the United States is adopting a position which is, as a...
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