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

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HUTTON
Judgment Date17 October 2002
Neutral Citation[2002] UKHL 36
Date17 October 2002

[2002] UKHL 36

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Hutton

Lord Millett

Lord Scott of Foscote

Regina
and
Secretary of State for the Home Department
(Respondent)
Ex Parte Thangarasa
(Appellant)

and one other action

Regina
and
Secretary of State for the Home Department
(Respondent)
Ex Parte Yogathas (FC)
(Appellant)

And One Other Action

(Conjoined Appeals)
LORD BINGHAM OF CORNHILL

My Lords,

1

The appellants (Mr Yogathas and Mr Thangarasa) are young Tamils from Sri Lanka. Both have applied for asylum in this country. Both challenge decisions by the Home Secretary which, if implemented, would lead to their removal to Germany in order that their claims for asylum may be resolved there. They resist such removal because they contend that their claims would not be as fully and favourably considered in Germany as they would here. While the thrust of their respective cases is thus similar, the legal basis is different because (for reasons of timing) they are subject to different statutory regimes in this country.

2

In Mr Yogathas' case the crucial question is whether the Home Secretary acted lawfully in certifying, as he did, under section 2(2)(c) of the Asylum and Immigration Act 1996 that the government of Germany would not send Mr Yogathas to Sri Lanka otherwise than in accordance with the 1951 Geneva Convention Relating to the Status of Refugees as amended by the 1967 Protocol to the Convention. In Mr Thangarasa's case the crucial question is whether the Home Secretary acted lawfully in certifying as manifestly unfounded, as he did under section 72(2)(a) of the Immigration and Asylum Act 1999, Mr Thangarasa's allegation that the Home Secretary, in making his removal decision, had acted in violation of Mr Thangarasa's human rights. These challenges to the Home Secretary's certificates were rejected at first instance by Richards J and Collins J respectively, and also by the Court of Appeal (Chadwick and Laws LJJ and Sir Anthony Evans), in a judgment in the two conjoined appeals given by Laws LJ.

3

Since the facts giving rise to these appeals, and the relevant legislation, are summarised in the opinions of my noble and learned friends Lord Hope of Craighead and Lord Scott of Foscote, whose summaries I gratefully adopt and need not repeat, I can go straight to the issues in the two appeals, which must be considered separately.

Mr Yogathas

4

This appellant contends that if he is removed to Germany his application for asylum will be prejudiced, as compared with its treatment in the United Kingdom, for four main reasons:

(1) The German courts and authorities, unlike those in the UK and most other countries, do not recognise as a refugee one who is a victim of persecution by non-state agents which the state is powerless to prevent. Thus the victim of LTTE persecution in the north of Sri Lanka, where the government's writ does not run, is not regarded in Germany as a refugee.

(2) The German courts and authorities apply a more stringent test than those in the UK when considering (if they do) whether it is reasonable to return an applicant for asylum to a part of his home country other than that in which he is liable to suffer persecution.

(3) Applicants for asylum, whether successful or not, enjoy less ample rights in Germany than in the UK.

(4) German courts and authorities, unlike those in the UK, will pay no attention to the ill-treatment meted out by police officers in Colombo to Tamils who are returned there.

5

The House had occasion to consider the first of these contentions in R v Secretary of State for the Home Department Ex parte Adan; R v Secretary of State for the Home Department Ex parte Aitseguer [2001] 2 AC 477 and found that a difference of interpretation existed. Since there could in principle be only one true interpretation of the Geneva Convention (page 516), since the true interpretation was that upheld by the House in Adan v Secretary of State for the Home Department [1999] 1 AC 293 (page 519F), since the true interpretation was not that accepted in Germany and France (page 508G), and since it was accepted that this difference of interpretation would probably lead to the return of the applicants to countries where they might face torture and death (page 512G), the House upheld the Court of Appeal's decision quashing the Home Secretary's certificates under section 2(2)(c) of the 1996 Act. Although a question was raised whether there might be alternative forms of protection available to protect the applicants in Germany and France, and this question was not ruled to be irrelevant, it was not discussed or resolved (pages 512G, 514H, 520F). In the present case this aspect was fully considered, both by the judge (particularly in paragraphs 14-19 of his judgment) and by the Court of Appeal (particularly in paragraphs 20-24). The conclusion reached was that even if, because of the different interpretation of the convention in Germany, the appellant would not be granted asylum under article 16a of the Basic Law and section 51 of the Aliens Act, he would be protected under section 53(6) of the Aliens Act.

6

The appellant's second contention relates to what has been called, not very happily, "internal flight". I agree with Lord Hope and Lord Scott that "internal relocation" is a better expression because it focuses attention on the real question, which is whether a person liable to persecution in one part of the country would be adequately protected by the state if relocated in another part to which he would in practice be returned. The judge concluded on the evidence that the German authorities would consider this aspect (paragraphs 30-36 of his judgment) and that while there were differences between the tests applied in Germany and the UK, the German test being more stringent than the British (paragraph 50(i)), the differences were not so great as to compel the conclusion that removal of the appellant to Germany would give rise to a real risk that he would be sent back to Sri Lanka or elsewhere otherwise than in accordance with the convention (paragraph 58). The Court of Appeal agreed with this conclusion (paragraphs 51-55).

7

The appellant's third contention was not accepted by the judge (paragraph 17) or the Court of Appeal (paragraphs 20-21): the thrust of the convention was to protect an applicant against the risk of return to a place of potential persecution, not to protect all his other economic, social and civil rights.

8

The appellant's fourth contention was rejected by the judge (paragraphs 21-23) and the Court of Appeal (paragraphs 25-29) on the ground that the evidence showed a general similarity of approach by the authorities in both countries.

9

Nothing in the careful and detailed judgments of the judge and the Court of Appeal throws doubt on the fundamental principle enunciated by the House in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 at 531F:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

The same is true of a decision which may expose the applicant to the risk of torture or serious ill-treatment. But the judge and the Court of Appeal were in my opinion right to give weight, consistently with that fundamental principle, to two important considerations. The first is that the Home Secretary and the courts should not readily infer that a friendly sovereign state which is party to the Geneva Convention will not perform the obligations it has solemnly undertaken. This consideration does not absolve the Home Secretary from his duty to inform himself of the facts and monitor the decisions made by a third country in order to satisfy himself that the third country will not send the applicant to another country otherwise than in accordance with the convention. Sometimes, as notably in Adan and Aitseguer [2001] 2 AC 477, he will be unable properly to satisfy himself. But the humane objective of the convention is to establish an orderly and internationally-agreed regime for handling asylum applications and that objective is liable to be defeated if anything other than significant differences between the law and practice of different countries are allowed to prevent the return of an applicant to the member state in which asylum was, or could have been, first claimed. The second consideration is that the convention is directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. Legal niceties and refinements should not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be appropriate to compare an applicant's living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it.

10

Despite the sustained argument of Mr Gill QC on behalf of this appellant, I am not persuaded that the judge or the Court of Appeal erred in their legal reasoning or in their assessment of the evidence before them. For these reasons I shared the conclusion, announced at the end of the hearing, that this appeal should be dismissed.

Mr Thangarasa

11

In challenging the Home Secretary's certificate given under section 72(2)(a) of the 1999 Act, this appellant faces certain initial problems, two factual and two legal. The first factual problem is that after leaving the north of Sri Lanka the appellant spent about a year in Colombo, which weakens his claim that he will be subject to ill-treatment if returned to Colombo. The second is that he was granted asylum in Germany in 1992, and lived in that country as a refugee for some seven years,...

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