R v Secretary of State for the Home Department, ex parte Gashi (Besnik)
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1999 |
| Date | 25 March 1999 |
| Court | Queen's Bench Division |
Court of Appeal
Evans, Thorpe, Buxton LJJ
M S Gill and A Dias for the appellant
M Beloff QC and Miss L Giovannetti for the respondent
Cases referred to in the judgments:
Bugdaycay and ors v Secretary of State for the Home DepartmentELR [1987] 1 AC 514: [1987] Imm AR 250.
R v Ministry of Defence ex parte SmithELRUNK [1996] QB 517: [1996] 1 All ER 257.
Gashi and Nikshiqi [1997] INLR 96.
R v Secretary of State for the Home Department ex parte CanbolatWLR [1997] 1 WLR 1569: [1997] Imm AR 442.
re L (Minors) (Police Investigation: Privilege)ELRUNK [1997] AC 16: [1997] 2 All ER 78.
R v A Special Adjudicator ex parte Kerrouche [1998] INLR 88.
R v Secretary of State for the Home Department ex parte Iyadurai [1998] Imm AR 470: [1998] INLR 472.
R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] Imm AR 231.
Asylum certified case ethnic Albanian from Kosovo Secretary of State proposed returning appellant to Germany for substantive consideration of his claim whether Secretary of State had conducted sufficient and proper enquiries to be satisfied that the German authorities would not return the appellant to the Federal Republic of Yugoslavia save in accordance with the Convention.
European Convention on Human Rights whether return to Germany would be in breach of the European Convention. European Convention on Human Rights art.3.
Litigation privilege whether appropriate for litigation privilege to be claimed for expert reports on which the Secretary of State had relied.
Appeal from the Divisional Court. The appellant was an ethnic Albanian from Kosovo: he had arrived in the United Kingdom from Germany where he had been refused asylum. He applied for asylum in the United Kingdom. The Secretary of State decided to return him to Germany for the substantive consideration of his claim. That decision was challenged, it being asserted that the German authorities inter alia adopted the wrong approach to incidents of harassment which might, cumulatively, amount to persecution.
The Divisional Court upheld the decision of the Secretary of State. On appeal, counsel repeated the arguments that had been before the Divisional Court: in addition he contended that to return the appellant to Germany in the light of the approach of the German authorities would be a breach of article 3 of the European Convention on Human Rights. Moreover it was manifest from statistics before that court that the proportion of Kosovan asylum seekers returned by Germany was significantly higher than the proportion returned elsewhere: that clearly suggested that the German authorities had a different approach to relevant questions.
The Secretary of State had declined to release the full text of expert opinions he had received from Germany and on which he had relied: he had claimed litigation privilege.
Held:
1. The significant differences in the proportion of Kosovan asylum seekers returned by Germany and other countries should have put the Secretary of State upon notice to make further enquiries.
2. The provisions of article 3 of the European Convention on Human Rights added nothing to the case for the appellant.
3. In asylum cases it was not appropriate to claim litigation privilege for expert reports.
Buxton LJ:
Introduction
This appeal raises again the issue of the powers and discretions of the Secretary of State when considering the removal of a person who has made a claim for asylum in the United Kingdom to what I will call a third country, such removal being contemplated under the arrangements made between the member states of the European Union in the Dublin Convention of 1990; which is given force in English domestic law by sections 2 and 3 of the Asylum and Immigration Act 1996 [the 1996 Act]. The particular provision of the 1996 Act that is in issue in this appeal is the limitation imposed by section 2(2)(c) that the Secretary of State shall not remove a relevant claimant from the United Kingdom unless he is able to certify that
the government of [the country or territory to which he is to be sent] would not send him to another country or territory otherwise than in accordance with the Convention;
the Convention here referred to being the Geneva Convention of 1951 relating to the status of refugees.
This general issue has been before the courts on a number of recent occasions, most conspicuously in three important cases in this court: R v Secretary of State ex parte CanbolatWLR [1997] 1 WLR 1569 [Canbolat]; R v A Special Adjudicator ex parte Kerrouche [1998] INLR 88 [Kerrouche] and R v Secretary of State ex parte Iyadurai [1998] INLR 472 [Iyadurai]. In what follows I shall refer to those cases simply by short title and page number of their respective reports.
It is not a matter of surprise, much less of criticism, that we are faced with further dispute about these provisions. Any asylum claim will necessarily be a matter of anxious concern and the particular provisions of the 1996 Act expose those concerns in an acute form, that demands close consideration in the light of the particular material addressed by the Secretary of State and put before the court when his certificate is challenged. In the present case the issue, not directly addressed in any of the authorities just referred to, concerns the Secretary of State's decision to issue a certificate under section 2(2)(c) in respect of the Federal Republic of Germany in the case of a Kosovan applicant for asylum, in the face of evidence that a very high proportion of Kosovan applicants to the German authorities or courts are in fact refused asylum and, subject to administrative issues, returned or sent to the Federal Republic of Yugoslavia.
The facts of this case
The appellant, Mr Gashi, who is an ethnic Albanian from Kosovo, arrived in Germany on 7 October 1996, and claimed asylum there. That application was in due course rejected; we have not been told on what ground. He was duly required to leave Germany, and on 22 December 1997 travelled to England, where he claimed asylum on arrival. On 16 March 1998 the Secretary of State issued the certificate that is in dispute in this appeal. That certificate, if lawful, exempts the Secretary of State from substantive consideration of Mr Gashi's case. It does not of itself require the applicant to leave the United Kingdom. That latter step is taken by the making of removal directions, which in the present case were made on 7 April 1998, Mr Gashi having by then been located in order to effect service on him. The directions provided for his removal on a specified flight to Germany on 14 April 1998.
There was a most unfortunate confusion in the Secretary of State's evidence, and throughout the case until the correct position was elicited under questioning by this court, as to the status of those removal directions. It emerged that at the beginning of April 1998 the Secretary of State was following a policy of not in fact returning Kosovan asylum seekers to Germany, even in cases, such as the present, where the Secretary of State felt able to certify that the case satisfied the requirements of section 2(2)(c) of the 1996 Act. That policy was adopted in response to, or at least in the context of, an appeal by the United Nations High Commissioner for Refugees that on humanitarian grounds countries should not return failed (I emphasise that condition) Kosovan asylum seekers to the Federal Republic of Yugoslavia. I return below to the significance of this decision, and of its maintenance until, we were told, 24 June 1998 for the actual issue in this appeal. That issue concerns the certification by the Secretary of State, which was a necessary condition of a lawful removal direction. The application for judicial review also, however, separately complained of the removal direction. When the court enquired as to why a removal direction had been issued in Mr Gashi's case in apparent defiance of the policy of the Secretary of State, we were originally told that that had been because Mr Gashi was being treated as a test case, and that accounted for the full procedure being adopted, we understood it to be said, in his case alone. The court having insisted that this issue be properly investigated, we were then told that the removal directions had in fact been cancelled as soon as they were issued (apparently by some sort of automatic process) in April 1998. The original issue of the removal direction had been an error, corrected when it was observed at a policy level.
That fact had never been related to Mr Gashi or his advisers, or to the court in the application to quash those directions, and it came as a surprise to counsel who appeared for the Secretary of State both in this court and in the court below. In the event, the main damage caused by that lapse was in terms of waste of court time, but the misunderstanding may to some extent have distorted the argument in the court below, an aspect of the case to which equally I will have to return.
I feel, however, compelled to record one further matter arising out of the failure of the Secretary of State to inform Mr Gashi's advisers of the cancellation of the removal direction. Mr Manjit Gill told us that throughout the case those advising Mr Gashi had assumed that his removal had been interrupted only because his advisers had made the present application. Mr Gill said that it was his understanding (and he emphasised that it was only an understanding) that other Kosovan refugees in Mr Gashi's position, who did not have the benefit of legal advice of the order available to Mr Gashi, might have been actually deported under removal directions of the sort originally and mistakenly issued in Mr Gashi's case. If that did occur it would obviously be a matter of the very gravest concern. The Secretary of State will, we expect, put himself in a position to be able to assure the court...
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