R (Yogathas) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMR JUSTICE RICHARDS
Judgment Date25 May 2001
Neutral Citation[2001] EWHC 377 (Admin)
Docket NumberCase No: CO/2787/00
CourtQueen's Bench Division (Administrative Court)
Date25 May 2001

[2001] EWHC 377 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Richards

Case No: CO/2787/00

The Queen on the Application of Santia Yogathas
Claimant
and
The Secretary of State for the Home Department
Defendant

Mr M Gill QC and Ms M Phelan (instructed by Messrs Theva & Co for the Claimant)

Mr I Burnett QC and Ms L Giovannetti (instructed by The Treasury Solicitor for the Defendant)

MR JUSTICE RICHARDS
1

The claimant is a young Tamil asylum seeker from Sri Lanka. The issue in the case is whether, in the light of the decision of the House of Lords in R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer [2001] 2 WLR 143 and the evidence before this court, he can lawfully be removed to Germany as a safe third country under s.2 of the Asylum and Immigration Act 1996. The decision under challenge predates the coming into force of the provisions of the Immigration and Asylum Act 1999 repealing s.2 of the 1996 Act and establishing a statutory regime under which, by s.11 of the 1999 Act, Germany is to be regarded as a safe third country (see Adan per Lord Steyn at 151 C-E).

2

The claimant entered Germany in March 1999 and applied for asylum. The details of his application to the German authorities are not known. The application was refused. He says that he appealed and that the appeal was unsuccessful. In November 1999 he came to the United Kingdom, where again he applied for asylum. The nature of the claim advanced in this country is that he is from the north of the country and he worked in an LTTE armaments factory, his brother was involved with the LTTE and was killed by the army, and he himself was detained for three months and tortured by the army. He also says that he resisted attempts by the LTTE to get him to join them and to fight for them, and he refers in that context to harassment and violence on the part of the LTTE. He therefore claims to fear persecution both from the state authorities and from the LTTE.

3

By letter dated 20 July and served on 29 July 2000, the Secretary of State informed the claimant that the German authorities had accepted responsibility under the Dublin Convention for examining his asylum application. By the same letter the Secretary of State certified that the conditions of s.2(2) of the 1996 Act were fulfilled. Directions were given for the claimant's removal to Germany. In the present proceedings, brought with permission granted by Goldring J, the claimant seeks judicial review of the decision to certify his case under s.2 of the 1996 Act and to remove him to Germany.

4

Section 2 allows the Secretary of State to remove an asylum seeker to a third country if he has certified that in his opinion the three conditions mentioned in sub-s.(2) are fulfilled. It is not in issue that the first two conditions were fulfilled in this case. The dispute relates to the third condition, namely “(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” (i.e. the Refugee Convention).

5

In order to explain the nature of the dispute it is necessary first to summarise the effect of Adan and to set out the reasons why, despite Adan, the Secretary of State has formed the opinion that Germany would not send the claimant to another country or territory otherwise than in accordance with the Convention.

The decision in Adan

6

In the three joined cases of R v. Secretary of State for the Home Department, ex parte Adan, Subaskaran and Aitseguer [1999] 3 WLR 1274 the Court of Appeal considered two appeals and one application challenging the decision of the Secretary of State to remove asylum seekers to Germany or France as safe third countries on the basis of certificates under s.2(2)(c). All three applicants claimed to fear persecution from non-state agents in their countries of origin. In the case of Subaskaran the country of origin was Sri Lanka and the claimed fear of persecution related to the LTTE. In all three cases the Secretary of State had decided by the time of the hearing in the Court of Appeal to consider the asylum claims on their substantive merits and thus not to return the applicants to Germany or France. Although the issues had thereby become academic so far as the individual applicants were concerned, the court took the view that they raised an issue of general importance, namely whether the Secretary of State was entitled to treat Germany and France as safe third countries in relation to asylum seekers who asserted a fear of persecution by non-state agents in their country of origin, where the state was not compliant in the persecution alleged. The court therefore decided that issue (though did not hear other issues raised by the cases, including, as I shall explain, one of the issues that arises for decision in the present proceedings).

7

The essence of the problem was that Germany and France adopt a different interpretation of the Refugee Convention, in particular the definition of “refugee” in Article 1A(2), from that adopted by the United Kingdom and the majority of other contracting states. Germany and France subscribe to “the accountability theory”, the United Kingdom to “the protection theory”. In the case of Germany, the effect of the accountability theory is that persecution from non-state agents is not attributed to the state unless the state tolerates or encourages such persecution or at least is unwilling to offer protection against it. The fact that the state is unable to provide protection against it, e.g. because there is no effective state authority over the area where the persecution is practised, is not enough to cause the persecution to be attributed to the state. Thus, for example, persecution from the LTTE in the north of Sri Lanka, where the government does not have effective control and is therefore unable (though willing) to provide protection, will not attract refugee status in Germany. By contrast, under the protection theory applied in the United Kingdom, persecution from non-state agents is capable of attracting refugee status if the state is unwilling or unable to provide protection against it; so that, for example, a person may qualify for asylum in this country by reason of a well-founded fear of persecution from the LTTE in the north of Sri Lanka.

8

The Court of Appeal held that the interpretation of the Convention was a matter of law, that the interpretation applied in the United Kingdom was the correct one, and that the applicants were entitled to the protection of the Convention in relation to feared persecution from non-state agents. The Secretary of State had therefore erred in law in forming the opinion under s.2(2)(c) that Germany and France would not send the applicants back “otherwise than in accordance with the Convention”.

9

The Secretary of State pursued an appeal to the House of Lords in respect of two of the cases, Adan and Aitseguer. An appeal was not pursued in Subaskaran because it added nothing to the issues raised by the other two cases. The House of Lords dismissed the appeal, holding that the only true and autonomous interpretation to be ascribed to Article 1A(2) of the Convention was that its protection extended to asylum seekers who feared persecution from those other than the state itself if, for whatever reason, the state in question was unable to protect them, and in interpreting Article 1A(2) differently Germany and France were countries which acted “otherwise than in accordance with the Convention” for the purposes of s.2(2)(c). Since there was a strong probability that the applicants' claims for asylum would be unsuccessful in Germany and France and that they would be sent back to their countries of origin where they feared persecution, Germany and France were not safe third countries to which the applicants could lawfully be returned under section 2 of the 1996 Act. The Secretary of State had therefore not been entitled to issue certificates under section 2.

Reasons for the Secretary of State's decision

10

The Secretary of State's decision in this case was taken after, and in the light of, the judgment of the Court of Appeal in Adan, though before the appeal was dismissed by the House of Lords. Full reasons for the Secretary of State's decision are contained in a letter dated 18 September 2000, written in response to the application for permission to apply for judicial review. Further material is contained in or exhibited to witness statements of Mr Ian Taylor filed on behalf of the Secretary of State after permission was granted. It will be necessary to refer to that material in the context of the issues concerning internal flight.

11

The letter of 18 September is lengthy. The reasons given may be summarised as follows: (1) in both Germany and the United Kingdom, if the state is unwilling to provide protection, then persecution is attributed to the state; (2) Adan identified an unlawful protection gap in Germany where the state is willing but unable to provide protection; (3) the German approach to willingness is the same as in the United Kingdom; (4) Sri Lanka has a democratically elected government which is willing to provide protection and is able to do so in parts of its territory; (5) in cases where persecution from non-state agents is alleged, the German authorities consider the internal flight alternative, assessing whether it is reasonable to relocate on a case by case basis and taking account of the personal circumstances of the applicant; (6) in this respect the Secretary of State is satisfied that the German approach is not in breach of the Convention and...

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