England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUSTICE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Friday 21 September 2001

Friday 21 September 2001

1. LORD JUSTICE LAWS: These are two appeals brought respectively against the judgment of Richards J given on 25 May 2001 in Yogathas and Collins J on 5 June 2001 in Thangarasa. In the former case the judge below himself granted permission to appeal. In Thangarasa I granted permission on 13 September 2001 and directed that that appeal be heard along with Yogathas.
2. Both cases concern Tamil asylum-seekers from Sri Lanka. The core facts of each may be collected shortly from the judgments at first instance. In Yogathas Richards J said at paragraphs 2 and 3 of the judgment:

"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."

3. The 1996 Act there referred to is the Asylum and Immigration Act 1996, section 2 of which allowed the Secretary of State to remove an asylum-seeker to a third country if he had certified that in his opinion the three conditions set out in section 2(2) were fulfilled. The case concerns the third condition, (c), which was:

"that the government of that country or territory would not send him [the asylum-seeker] to another country or territory otherwise than in accordance with the Convention [the Convention is of course the 1951 Geneva Convention for the Protection of Refugees]."

4. Richards J identified the issue in Yogathas thus:

"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 [that is the asylum-seeker] can lawfully be removed to Germany as a safe third country under s.2 of the Asylum and Immigration Act 1996."

5.  I shall return shortly to the decision of their Lordships' House in Adan.
6. Since both Yogathas and Thangarasa involve consideration of forms of protection offered by German law other than the Refugee Convention it is convenient at this stage to set out the following provisions contained in the basic law and the German Aliens Act. Article 16a of the Basic Law provides that "anybody persecuted on political grounds has the right of asylum." Then in the Aliens Act section 51 provides:

"Ban on deportation of persons who are politically persecuted (1) A foreigner cannot be deported to a state in which his life or his liberty is threatened on the grounds of his race, religion, nationality, his membership of a certain social group or because of his political convictions.....

Section 53. Obstacles to deportation. (1)A foreigner cannot be deported to a state in which, for this foreigner, there is a definite danger of being subjected to torture .....

(4) A foreigner may not be deported should it appear from the application of the Convention on the Protection of Human Rights and Fundamental Liberties of 4 November 1950 that the deportation is unlawful ....

(6) Deportation of a foreigner to another state can be avoided if there exists for this foreigner a considerable definite danger for body, life or liberty in that state. Dangers in that state to which the race or racial group, to which the foreigner belongs, is generally exposed, are covered by decisions under section 54."

7. I need not, however, read section 54.
8. Section 2 of the Act of 1996 was repealed by the Asylum and Immigration Act 1999, whose provisions are to the fore in the case of Thangarasa. The facts of that case are summarised by Collins J in paragraphs 1 to 3 of his judgment as follows:

"1. The applicant in this case is a Sri Lankan Tamil born in November 1974. In 1989 he was detained by the Indian Peacekeeping Forces and was ill-treated. Thereafter he was harassed by the LTTE, who wanted him to join them and fight for them. This he did not want to do and so he fled to Colombo to escape their blandishments. He remained in Colombo, it would seem, for about a year until, in September 1992, he was arrested and detained for a week and was beaten and questioned. He secured his release through bribery. The reason that he was of interest to the authorities was because it was believed that he had supported the LTTE. He had family who apparently were sympathetic to the LTTE and a cousin who was killed by the army and was a member of the LTTE. Accordingly, he says that he fears that if he is returned to Sri Lanka, even to Colombo, and if he is investigated at all by the authorities, the link may be made and so he is at real risk of ill-treatment amounting to persecution.

2. He fled from Sri Lanka. On 20th September 1992 he went to Germany, where he claimed asylum. This was granted on appeal. He was still living in Germany when, in December 1999, he was called before the court which decided that he could be returned to Colombo. He was no longer to be regarded as a refugee. He appealed against that decision, but his appeal was dismissed. Thereafter he came to this country, arriving on 25th November 2000. There was the usual what is described as Dublin screening interview, that is to say an interview to establish whether or not, pursuant to the Dublin Convention, he should be returned to Germany, Germany being the country which should properly consider any application that he made for asylum. The German authorities were asked whether they would accept responsibility for his application. On 8th December they agreed that they would. Following that, the Secretary of State on 12th December decided to direct removal of the applicant to Germany in accordance with section 11(2) of the Immigration and Asylum Act 1999.

3. The applicant asserted that to do that would be to breach his human rights. That assertion was considered by the Secretary of State, who, on 15th January, decided, in accordance with section 72(2)(a) of the 1999 Act, that the claim should be rejected and was manifestly unfounded. The result of that was that there was no right of appeal under section 65 of the 1999 Act."

9. It is convenient at this stage to set out the following provisions of the Act of 1999. Section 11:

"(1) In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member state [of the European Union] is to be regarded as -

(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(2) Nothing in section 15 prevents a person who has made a claim for asylum ('the claimant') from being removed from the United Kingdom to a member State if -

(a) the Secretary of State has certified that -

(i) the member state has accepted that, under standing arrangements, it is the responsible state in relation to the claimant's claim for asylum; and

(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;

(b) the certificate has not been set aside on an appeal under section 65".

10. Section 65:

"(1) A person who alleges that an authority, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.

(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998."

11. It is not necessary to go into the Human Rights Act. The reference is broadly to violations of the now municipalised Convention.
12. Section 72 of the Act of 1999:

"(1) Unless a certificate issued under section 11 or 12 has been set aside on an appeal under section 65 or 71 or otherwise ceases to have effect, the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.

(2) A person who has been, or is to be, sent to a member State . . . is not, while he is in the United Kingdom, entitled to appeal --

(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded".

13. I may break off there.
14. The issue in Thangarasa's case was described by Collins J thus (paragraph 6 of the judgment):

"What is said, in broad outline, is that the German procedures are not apt to ensure that someone who establishes that there are substantial grounds for believing that there is a real risk that he will be treated contrary to Article 3 if returned to Sri Lanka or, indeed, to other countries (but this case is concerned with Sri Lanka) will receive from Germany the protection that is required . . . That being so, it is submitted that it was not open to the Secretary of State to be satisfied that the claim was manifestly unfounded."

15. The reference there to Article 3 is, of course, to Article 3 of the European Convention on Human Rights. That, as is well known, provides that no-one shall be subjected to torture or inhuman or degrading treatment or punishment.
16. The case of Adan concerned three asylum-seekers whom the Secretary of State proposed to return to what he regarded as safe third countries, in two cases to Germany, in one to France. The litigation arose because the authorities in those states adopted a different interpretation of "refugee" in Article 1A(2) of the 1951 Convention from that adopted in the United Kingdom and as I understand in most other states party to the Convention. The difference related to the position that arises where the asylum-seeker claims to fear persecution by non-state agents. As Richards J said at paragraph 7 of his judgment in Yogathas:

"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-stage 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, eg 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."

17. Then the learned judge draws the contrast with the interpretation adopted in the United Kingdom, where protection on such facts would or might be afforded.
18. In Adan their Lordships' House, upholding the decision of this court, held as follows (I read from the headnote, [2001] 2 WLR 143):

"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 by those other than the state if, for whatever reason, the state was unable to protect them, and in interpreting differently Article 1A(2) Germany and France were countries that acted 'otherwise than in accordance with the Convention' for the purposes of section 2(2)(c) of the 1996 Act."

19. In Yogathas Richards J held, after looking at a series of factors, that the Secretary of State was entitled to conclude that condition (c) in section 2(2) of the 1996 Act was met on the footing that the appellant would not be removed from Germany otherwise than in accordance with the 1951 Convention. In Thangarasa Collins J held that the Secretary of State was entitled to conclude under section 72(2)(a) of the 1999 Act that the appellant's claim that to return him to Germany would expose him to violations of Article 3 was manifestly ill-founded. These are the conclusions which are challenged on these appeals.
20. I turn to the points which arise in Yogathas. The first is the contention rejected below, that because of the German approach to Article 1A(2) of the Convention based on the accountability theory, a significant part of the appellant's asylum claim will not be considered in Germany in a manner which accords with the 1951 Convention - that is to say, the appellant's stated fear of persecution at the hands of non-state agents. Mr Gill QC for the appellant said that it is necessary to construe the words in section 2(2)(c), "send him to another country", as embracing the whole process of reasoning and decision-making which leads up to a claimant's being sent back, since otherwise he may be sent to a country whose procedures are less full or adequate or Convention compliant than those which are undertaken here, and in that case he would be the victim of discrimination in comparison with asylum-seekers whose cases are considered in the United Kingdom on their merits; and, moreover, the whole range of the claimant's Convention rights may not be protected. However, in my judgment, and as Richards J was at pains to point out, the focus of section 2(2)(c) of the 1996 Act is by no means towards the processes of reasoning which the third country might undertake in deciding what to do. Rather the focus is on the outcome upon the claimant's removal from the United Kingdom.
21. The question for the Secretary of State is whether the government of the third country would send the claimant to another country or territory otherwise than in accordance with the Convention. This question is wholly practical, as is shown by the reasoning of this court in R v Secretary of State for the Home Department, ex parte Canbolat [1997] 1 WLR 1569 at 1577 in a passage cited by Richards J at paragraph 18 of his judgment. Mr Gill goes so far as to submit (see paragraph 17 of his skeleton argument) that even if the claimant would obtain some other form of protection in Germany, as for instance under section 53(6) of the Aliens Act which I have set out, still the Secretary of State's certificate would be bad because Germany's mistaken interpretation of the Geneva Convention ipso facto and without more renders any removal of the claimant to Germany unlawful.
22. At one stage Mr Gill was disposed to accept a proposition put to him by my Lord Lord Justice Chadwick that even in a case where the claimant would undoubtedly not be sent by the third country back to his country of origin, though for reasons unconnected with the Convention, still the Secretary of State could not certify under section 2(2)(c). That would be a case in which the claimant would not be sent to his country of origin at all. Obviously such a case cannot be one in which the Secretary of State would be unable to certify under section 2(2)(c); and in fairness on reflection Mr Gill at length eschewed so absurd a consequence.
23. In my judgment Mr Gill's argument on this point simply rewrites the statute. In the Court of Appeal in Adan [1999] 3 WLR 1274, we said at 1300C:

"In our judgment the Secretary of State, in administering section 2(2)(c) of the Act of 1996, is only concerned with the question whether there exists a real risk that the third country will refoule the putative refugee in breach of the Convention: that is, in breach of article 33. This follows, in our judgment, from the words of the subsection."

24. Moreover, the question whether alternative procedures were available in Germany which might protect asylum-seekers whose claims for asylum properly so called were rejected because of Germany's interpretation of the Convention was a question expressly left open by their Lordships' House in Adan and thus presumably regarded as a material and relevant one: see at 150E and 158C. In my judgment this first point is bad and was rightly rejected by Richards J.
25. The second point concerns the treatment or alleged treatment of Tamils in Colombo by Sri Lankan police officers. There is undoubtedly evidence, and Mr Gill has been at pains to invite our attention to it, that returned Tamil asylum-seekers may be arrested on flimsy grounds and ill-treated. In Syandan (5 March 1998) the Immigration Appeal Tribunal held on the particular facts there that it would be unduly harsh to return a Tamil to Colombo as an internal flight alternative. The risk of his being arrested and subjected to extortion were two of the factors. In fact there the appellant had earlier been to Colombo where he had indeed been ill-treated. The decision was partly based on difficulties that the appellant faced through lack of documents, and the Immigration Appeal Tribunal was at pains to emphasise that their decision was specific to the facts of the particular case.
26. Mr Gill's argument on this part of the appeal is that the German authorities would not give proper consideration to the risk of such ill-treatment by the police, if Yogathas were returned to Colombo, because they do not regard such matters as amounting to persecution at all and in any event do not attribute such actions by police officers to the state. It is to be noted that this court held in Ravichandran ([1996] Imm AR 97) that round-ups, as they are sometimes called, do not or do not necessarily amount to persecution; but still the risk of such treatment has to be properly considered in the context of a suggested internal flight alternative. Mr Gill says that because the German authorities will not consider such asylum-seekers as Yogathas as potential refugees at all the German authorities will not look at this question of internal flight fully or properly. He cited the decision of the European Court of Human Rights in TI v United Kingdom [2000] INLR 211 to the learned judge below, who set out at paragraph 21 of his judgment the only two passages which Mr Gill submits to us are relevant. They are as follows:

"In the recitation of facts at 215H-216A it is stated:

'In its decision of 26 April 1996, the Federal Office for the Recognition of Foreign Refugees ("The Federal Office") did not make any findings as to whether the applicant had been tortured as alleged, but considered that this was "not relevant regarding the right of asylum. These are excesses of isolated executive organs and cannot be imputed to the Sri Lankan state". In that regard, new government orders had made clear that such practices were not to be tolerated.'

In the description of German law concerning asylum seekers and persons claiming protection, it is stated at 222B-C:

'Ill-treatment by a State officer considered as an isolated event in excess of his functions and prohibited and sanctioned according to the regular administrative and penal procedures is not attributed to the State. A practice of torture by police or prison authorities, either in the form of political persecution or in the context of Art 3 of the Convention, is attributed to the State. State complicity my be shown where torture is practised as part of the police or military structure of a state.'"

27. Mr Gill submits and submitted below that these passages show in effect that the Germans would approach such factual issues in a different manner from the approach taken by the authorities here. Richards J said this at paragraph 23:

"In my judgment those submissions lack any adequate evidential foundation. The summary of German practice in TI v United Kingdom does not reveal any material difference of approach from that in the United Kingdom and there is no other evidence establishing such a difference of approach. In the consideration of asylum claims in the United Kingdom, isolated abuses by officials will not be regarded as amounting to persecution for which the state is responsible if they are prohibited and sanctioned. There must of course be a reasonable willingness to enforce the prohibitions and enforce the sanctions, in accordance with the concept of sufficiency of protection examined in Horvath v Secretary of State [2000] 3 WLR 379. But the evidence before this court supports the view that the German authorities apply essentially the same approach in that respect, looking to whether the state will provide adequate protection in practice. I refer to, but do not think it necessary to quote from, page 4 of Professor Hailbronner's letter of 15 February 2000 and paragraph 5 of his report of 20 October 1999. In any event Mr Gill has not contended that the expert evidence itself indicates a difference of interpretation or approach by the German authorities on this issue. His case rests on an inference that he seeks to draw from the evidence as a whole. In my view no such inference can be drawn."

28. I have read the passages from Professor Hailbronner's material to which the judge refers. The passage latterly referred to from the report of 20 October 1999 includes the following:

"There can be hardly any doubt that a practice of torture by the police or prison authorities in Turkey may be attributed to the state, either in the form of political persecution or in the context of Art 3 ECHR in the form of torture or inhuman treatment. Such attribution is independent of the fact that a state has enacted laws against torture including some disciplinary or penal sanctions. In order to prove state complicity it is sufficient to show that torture or inhuman treatment is actually practised as part of the police or military structure of a state. If persecution is ordered by the military without any effective control by the government, it may be attributed to the state [then a reference is given]. Attribution to the state is only excluded if a concrete action by a state official must be considered as an isolated event committed in excess of an officer's functions and prohibited and sanctioned according to the regular administrative and penal procedures."

29. It seems to me in light of that that Richards J's conclusions as to the similarity of process between Germany and the United Kingdom in the context of this part of the argument were well justified. However, Mr Gill says that the learned judge missed the real point. He submits that unless such actions alleged against the police are considered within the context of a proper interpretation of Article 1A (2) of the Geneva Convention, they are of necessity not considered properly. This seems to me to be no more than an attempt to resurrect Mr Gill's first point in a different context. If the German authorities consider the merits of a complaint as to the feared conduct of police in Colombo and do so properly and reasonably as a matter of factual enquiry, then the fact that the exercise is undertaken not in the context of Article 1A(2) but of other provisions in German law such as section 53(6) cannot of itself disentitle the Secretary of State from relying on that decision for the purposes of section 2(2)(c). In my judgment this second point also is bad.
30. The third point is that there can be no confidence that the issue of internal flight will be considered by the German authorities at all. Mr Gill says the evidence falls short of establishing an invariable practice whereby that is done. If that is right the Secretary of State's certificate is flawed, it being his case that under section 53(6) the German authorities do not return asylum-seekers claiming to fear persecution from non-state agents unless the conditions for what, under the Convention, would be the internal flight alternative are met.
31. The state of the evidence is as follows. Mr Ian Taylor is a Senior Executive Officer in the relevant directorate of the Immigration and Nationality Department and a Senior Caseworker in the Home Office Third Country Unit. He has had much contact with the officials of the Federal Office in Germany which makes what may be called the first-instance administrative decisions on asylum claims in Germany. In August 2000 he visited their offices in Nuremberg. In his first witness statement for the Secretary of State he said this:

"6. … … The primary purpose of my visit was to confirm my understanding of the treatment of asylum claims lodged in Germany by nationals of Sri Lanka and, in particular, by those of Tamil ethnicity.

7. At the headquarters of [the Federal Office] I met with the officer responsible for Sri Lankan country information matters, and the officer who was responsible for the liaison between Germany and [the Centre for Information, Discussion and Exchange on Asylum]."

32. Then at paragraph 12:

"Where persecution is alleged to emanate from non-state bodies the German authorities consider, as a matter of practice, whether there is a viable 'internal flight' alternative open to the applicant; that is whether there is an area of Sri Lanka to which the applicant can reasonably be expected to relocate in safety. The assessment of whether it is reasonable for an individual to move to another area of Sri Lanka, I was informed, is based on a wide ranging consideration of the individual circumstances in each particular case, including whether the returned asylum seeker has family and support in the area to which he is returned."

33. Then lastly at paragraph 18:

"Although as a matter of legal theory the German authorities could return to Sri Lanka a national who feared persecution from the LTTE in the North simply on the basis that such a fear of persecution could not be attributed to the state, from my discussions with the German authorities I was satisfied, and was told, that they are acutely aware of the sensitivity of returns to Sri Lanka and in practice consider an internal flight alternative. I am not aware of a single case where a person has been returned in such circumstances without the German authorities having considered internal flight."

34. The Secretary of State through Mr Taylor thereafter made further enquiries of the German authorities. In his second witness statement Mr Taylor says this (paragraph 3):

"The Defendant has recently had confirmation from the German authorities that there is normally no expulsion of rejected asylum seekers to Sri Lanka without consideration of the availability of internal flight and that, indeed, Mr Manfred Kohlmeier of the [Federal Office] is aware of no case where LTTE persecution was claimed and the availability of internal flight not considered. This tends to confirm the Secretary of State's understanding that, although a theoretical possibility, in practice an asylum seeker from the north of Sri Lanka would not be returned to Colombo without consideration of internal flight whatever the source of the persecution alleged."

35. That is not the end of the matter. Enquiry was also made of the United Nations High Commission for Refugees whether they had any knowledge of a case in which Germany accepted that a Tamil faced a real risk of persecution by the LTTE in the north of Sri Lanka yet returned him without consideration of internal flight. The reply is in a faxed letter from the UNHCR dated 12 March 2001. There it was said that they had reviewed 200 cases decided by the Federal Office. The letter stated:

"Of the 200 odd cases analysed, in only 27 cases did the asylum applicants claim persecution by the LTTE alone. Most other applicants who claimed to fear persecution from the LTTE also referred to an additional fear of being persecuted by state-agents. From those 27 cases, the claim of only 11 applicants was regarded as 'credible and as relevant' with regard to Article 16 of the German Constitution .... and Section 51 Aliens Law .... This means that these 11 cases were examined under these provisions and not already at this point rejected as non-state acts. However, the adjudicators did not make a final decision on the relevance of these acts, but left this question open as in any case the applicants could avail themselves of an internal flight alternative. Therefore, all those cases were denied protection as they could have found an internal flight alternative in the South/Colombo according to the Federal Office.

In 8 cases, persecution at the hands of the LTTE was regard as irrelevant in the light of German jurisprudence on the agent of persecution issue and Section 53 Aliens Law .... Further, in 8 cases the applicant's claim was considered as not credible."

36. Mr Gill naturally seizes on the reference to eight cases where internal flight is said not to have been examined, persecution at the hand of LTTE being held to be irrelevant. Richards J said this:

"35. The UNHCR letter is more troubling. It does appear to indicate the existence of a significant number of cases where internal flight is not considered by the Federal Office. But the point is not entirely clear and, more importantly, the letter looks at the position only at first instance. It does not examine whether consideration was given to internal flight in those cases by the courts on appeal or whether, looking at the process as whole, any asylum seekers claiming fear of persecution from the LTTE are in practice returned without consideration of internal flight. On the available evidence, no such case has been identified by anyone. Nor is this the result of mere oversight in the preparation of the evidence. The Secretary of State has put it forward as a positive statement and has placed considerable reliance on it. The question was also asked of Professor Hailbronner, who states in a letter of 16 January 2001 that he is not aware of any case in which a Sri Lankan asylum seeker faced a real risk from the LTTE in the north of Sri Lanka and has been returned into that country without consideration of availability of internal flight.

36. I remind myself that it is for the Secretary of State to make appropriate inquiries and to evaluate the resulting material, and that the role of the court is to determine whether he could properly come to the decision he did on that material: see eg Canbolat at 1579. I also bear in mind the passage already quoted from Canbolat at 1577 to the effect that it is permissible to grant a certificate where there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. On the evidence as a whole, I take the view that the Secretary of State was entitled to conclude that the claimant would not be sent back to Sri Lanka by Germany without consideration of the internal flight alternative, and that he was entitled to maintain that position in the light of the further material obtained since the date of his original decision."

37. Mr Gill says that the Secretary of State failed to make proper or sufficient enquiry. However, given the evidence to which I have referred, notably from Mr Taylor, I find it impossible to hold that the Secretary of State was not in law entitled to conclude as he did for the purposes of section 2(2)(c) and I would uphold the decision of the judge.
38. There is, however, a postscript. Further enquiry since the judgment at first instance has been made of the UNHCR. On 28 July 2001 a letter was written to the UNHCR by Mr Gill's junior in these terms:

"Your letter of 12th March suggests that of the 27 cases where persecution by LTTE alone was claimed, in 8 cases persecution at the hands of the LTTE was regarded as irrelevant. It seems that in those 8 cases internal flight was not therefore considered. We would be grateful if you could confirm whether or not internal flight was considered in those cases."

39. The reply came back on 18 September 2001:

"Branch office Nuremberg informs us that the concept of internal flight alternative is considered as a rule by German adjudicators, with very few if any exceptions. As such in relation to the 8 cases pertaining to the applicants who fled persecution at the hands of the LTTE, we would like to state, therefore, it is reasonable to conclude that the internal flight alternative was indeed considered."

40. A further enquiry has not yet been answered. In the result, so far as the material from the UNHCR is concerned, the matter is far from crystal clear; but if anything, that material assists the Secretary of State. Plainly in my judgment it cannot dislodge the conclusion arrived at by Richards J.
41. Points 4 and 5 in Mr Gill's argument are linked. Point 4 consisted of the submission that so far as the German authorities do consider internal flight, they do so in a manner incompatible with an applicant's Geneva Convention rights. Mr Gill referred to the decision of this court in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 and Karanakaran v Secretary of State [2000] 3 All ER 449. In his skeleton argument he submits that these authorities vouchsafe the following:

"The UK approach, set out in Robinson and Karanakaran requires in essence that the decision-maker should consider whether the claimant has a well-founded fear of persecution for a Convention reason in a part of his home State. If he does, the next stage of the inquiry is to consider whether he can safely relocate elsewhere in his home State so as to avoid the risk of Convention persecution and whether it is reasonable to require him to do so. This latter part of the enquiry involves considering whether it would be unduly harsh to require him to relocate. In essence this involves considering whether his basic civil, political, and socio-economic human rights would be protected in the area of relocation so as to render it reasonable to expect him to relocate. This is the result of the 'protection' theory which is adopted in the UK and many other States."

42. Mr Gill referred in this context to a New Zealand decision to which importance was attached in a recent judgment of this court Vallaj v A Special Adjudicator (24 May 2001).
43. I should refer to a short passage from the judgment of Sedley LJ in Karanakaran upon which Mr Gill has specifically relied because it helps underline how he puts this part of the case. At 473H Sedley LJ said:

"Unfortunately both the special adjudicator and the tribunal failed to approach the Convention methodically. They treated the availability of internal flight as a reason for holding that the fear of persecution was not well-founded. There may possibly be countries where a fear of persecution, albeit genuine, can so readily be allayed in a particular case by moving to another part of the country that it can be said that the fear is either non-existent or not well-founded, or that it is not 'owing to' the fear that the applicant is here. But a clear limit is placed on this means of negating an asylum claim by the subsequent provision of the article that the asylum-seeker must be, if not unable, then unwilling because of 'such fear' -- ex hypothesi his well-founded fear of persecution -- to avail himself of his home state's protection. If the simple availability of protection in some part of the home state destroyed the foundation of the fear or its causative effect, this provision would never be reached."

44. Fixing on the need for a methodical approach, Mr Gill submits that unless an internal flight inquiry is preceded by an inquiry into the Convention question whether the claimant has a well-founded fear of persecution for a Convention reason, then it will not be a proper inquiry and its outcome may be distorted. The circumstances in which the claimant's fear arises may well be relevant to the question whether it would be unduly harsh for him to relocate in a different part of the country.
45. In my judgment this also resurrects Mr Gill's first argument in another guise. If the German authorities consider the appellant's claim to fear the LTTE not under the Convention but under section 53(6) there is no reason why they might not conclude that he would indeed be in danger in the north of Sri Lanka and proceed then to consider whether nevertheless he might be returned to Colombo. To hold otherwise and so to allow the appeal would be to strike down the Secretary of State's decision on a theoretical and not a practical footing.
46. The real question in the case, as I see the matter, is Mr Gill's fifth point. He says that the German authorities, so far as they consider internal flight, apply a much harsher test than the Convention according to the English jurisprudence, and other learning, warrants. The English test, if I may call it that, was discussed in detail in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929. I need cite only one of the passages, at 943B-D, set out by the learned judge below in paragraph 40 of his judgment:

"In our judgment, the Secretary of State and the appellate authorities would do well in the future to adopt the approach which is so conveniently set out in paragraph 8 of the European Union's Joint Position. Where it appears that persecution is confined to a specific part of a country's territory the decision-maker should ask: can the claimant find effective protection in another part of his own territory to which he or she may reasonably be expected to move? We have set out appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden JA in the Thirunavukkarasu case .... , 'would it be unduly harsh to expect this person ... to move to another less hostile part of the country?' to be a particularly helpful one. The use of the words 'unduly harsh' fairly reflects that what is in issue is whether a person claiming asylum can reasonably be expected to move to another part of the country."

47. Then in Karanakaran Brooke LJ said at page 456H:

"Although this is not the language of 'inability', with its connotation of impossibility, it is still a very rigorous test. It is not sufficient for the applicant to show that it would be unpleasant for him to live there, or indeed harsh to expect him to live there. He must show it would be unduly harsh."

48. As is emphasised in the Secretary of State's skeleton argument, the whole issue of internal flight has its genesis in the words of Article 1A(2) of the Convention defining a refugee:

"Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion [the claimant] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

49. The emphasis in the present context is on the words "is unable." The internal flight doctrine arises because the question whether someone is able to avail himself of his home state's protection, and therefore may be required by a receiving state to do so, must import some issues of what is reasonable and humane. Yet since the Convention plainly was not intended to address problems of poor social and economic conditions, our courts have elaborated a relatively stiff test for internal flight: would it be unduly harsh to require the applicant to relocate?
50. Richards J accepted, and I do not understand it to be disputed by the Secretary of State, that there are indeed differences in the approaches of Germany on the one hand and the United Kingdom on the other to the issue of internal flight. The judge summarised the position thus:

"(i)The question posed in the two countries is not exactly the same: in the United Kingdom, it is whether it would be unreasonable or unduly harsh to return the applicant, in Germany it is whether the return of the applicant would be in breach of the basic protections conferred by section 53(6) of the Aliens Act.

(ii) In practice essentially the same social and economic issues are considered in each country, in each case looking at the individual circumstances of the applicant; but in Germany the test of economic survival is such that more extreme social and/or economic difficulties are required in order to avoid a finding that the internal flight alternative applies.

(iii) The applicant's civil and political rights do not appear to be taken into account in Germany, save to the extent that political rights are considered under the safety limb of the internal flight alternative, ie whether there would be a sufficiency of protection from the state in the area of relocation. Such matters may, however, be taken into account in the United Kingdom in considering the reasonableness of relocating, albeit that significant issues are unlikely to arise in the great majority of cases and none have been raised in relation to this particular claimant. To illustrate how they may be taken into account, Mr Gill cited the decision of the Immigration Appeal Tribunal in Sivagnanasundaram Sayandan (HX/65429/96, determination notified on 5 March 1998), in which the tribunal allowed an appeal on the basis that the combined effect of eleven factors made it unreasonable or unduly harsh for the applicant to relocate to Colombo. Those factors included the existence of racial discrimination to which the applicant would be subject as part of everyday life and the disadvantage he would have in dealing with government officials when he did not speak the majority language, Sinhala. The decision also illustrates how the cumulative effect of different considerations may result in an overall assessment that it would be unduly harsh to relocate.

(iv) The difference between the two regimes is further illustrated by the very fact that, in the case of Sri Lankan asylum seekers claiming to fear persecution from the LTTE in the north, no case has been put forward where the German authorities have in practice rejected the internal flight alternative, whereas in the United Kingdom it is sometimes, if rarely, rejected."

51. As it seems to me, if Germany applied the same interpretation of refugee as the United Kingdom does in relation to non-state agents, and therefore in a case like the present were to consider the question of internal flight in the context of the Convention rather than that of section 53(6), these differences in approach would not debar the Secretary of State from certifying under 2(2)(c). If that is right, I see no reason why he should be so debarred by virtue of the fact that Germany in truth considers the matter in the context of section 53(6). I do not consider that the Convention requires a specific single unitary approach to the factual standards to be met for the purposes of internal flight. This is not, I think, in truth a question of the interpretation of the Convention; it is not an issue of law. If the distinction which this court drew in Adan [1999] 3 WLR 1274 at 1293D-F between application and interpretation survives the decision in the same case in their Lordships' House, then in my judgment this is an application case.
52. If this reasoning is correct its effect is to recognise a margin of tolerance of different views as to what is involved in a person's being unable to avail himself of his own state's protection. It is I think very important to recognise that a question of internal flight will only arise if the deciding state has identified a part of the claimant's home state where he will not be persecuted for a Convention reason. Thus an internal flight issue is not of itself an issue as to whether the claimant will or will not be persecuted.
53. Mr Burnett QC said that the distinction between application and interpretation survived the decision of their Lordships' House and indeed is reflected in a short passage in the speech of Lord Slynn at page 147:

"There may be cases in which an interpretation adopted by the Secretary of State can be carried out in different ways and in such a case it may well be that the Secretary of State could accept that such other ways were in compliance with the Convention."

54. Having looked also at all the passages in Adan referred to by Mr Gill, I think that Mr Burnett's submission is right, and I say at once I doubt I was correct in Sepet and Bulbul v Secretary of State for the Home Department (11 May 2001) to suggest that this distinction is rendered very fragile: see paragraph 49 of my judgment in that case. That was not a case concerned in any way with an internal flight alternative. It seems to me, as I have said, that whether a person is able to avail himself of his own state's protection is a question of fact calling for a judgment that will to some extent in truth be a value judgment.
55. Richards J held in paragraphs 56 to 58 that it was reasonably open to the Secretary of State to conclude that there was no real risk that Yogathas might be returned to Colombo in circumstances in which he could not reasonably be expected to stay there. I agree with him. While I have noted Mr Gill's references to Turgut [2001] 2 WLR 719 in this court and Daly [2001] 2 WLR 1622 in their Lordships' House, I do not for my part consider it necessary or desirable to embark in the context of this case upon a discussion of the appropriate intensity of review by the Administrative Court or this court. I add that I have considered also the materials exhibited to Shirani Thevarajah's fourth witness statement and have found them of no assistance. I would dismiss the appeal in Yogathas.
56. I turn to Thangarasa's case. In his skeleton argument Mr Gill makes it clear that he does not challenge the decision of 12 December 2000 to remove Thangarasa under section 11(2) of the Act of 1999. His argument rather is that the Secretary of State was not entitled to certify under section 72(2)(a) in the first place.
57. I will deal first with Mr Gill's argument that the Secretary of State is only entitled to conclude that the claim is "manifestly unfounded" if on an initial and cursory examination of the case it is plain that that is so. He relies on a passage from the judgment of Dyson J (as he then was) in Vallaj at first instance:

"52. Mr Macdonald submits that a 'manifestly unfounded' claim is one which it is plain and obvious has no foundation. The certification process is intended to weed out claims which on an initial examination are obviously bad claims, which do not merit full examination at every level of the asylum procedure. But because the risks of wrongly sending someone back to the country of alleged persecution are so great, and since asylum cases demand 'rigorous examination' and 'anxious scrutiny': Bugdacay [1978] AC 514, certification is only apt in such cases where it is plain and obvious that the claim is unfounded.

53. I do not think that any of the above is controversial. It is not possible to define what is meant by 'manifestly unfounded' with any more precision than to say that it must be plain and obvious. Moreover, it must be plain and obvious on an initial and fairly quick consideration of the claim. Sometimes, the answer to a difficult question becomes plain and obvious after a prolonged and detailed examination of the issue. But I do not believe that a claim is 'manifestly unfounded' within the meaning of the statute if the answer becomes plain only after a lengthy and detailed consideration."

58. I do not consider that Dyson J was proposing to lay down a general rule. If he was, I would respectfully part company with him. In my judgment Mr Underwood is right to submit as follows (skeleton argument paragraph 5):

"A Claimant may advance numerous allegations, each of which is clearly wrong, but which will cumulatively take some time to consider. Similarly, a Claimant may advance voluminous materials in support of his allegations but nonetheless, once read, it may be plain and obvious that they do not give substance to the allegations. The Courts are familiar with summary disposal of issues which are clearly without merit, for instance when considering striking-out applications, summary judgment applications, and applications for permission to apply for judicial review. It is not necessarily an impediment to such summary disposal that a claimant raises numerous points and advances voluminous materials."

59. I might add that one is well familiar with the practice in Strasbourg to examine a case with very considerable care and thoroughness and yet conclude that the application is manifestly unfounded.
60. The Secretary of State may in my judgment properly issue a certificate if he is satisfied that there is plainly nothing of substance in the case. Certainly he does not conduct a deep or exhaustive examination of the merits -- the process is qualitatively different from that of an actual trial or final examination or decision -- but the process he adopts must respond to the nature and volume of the case which is put to him. This approach is in my judgment perfectly consistent with the terms of the European Union London resolution to which Mr Gill referred.
61. Mr Gill's primary submission is that there is a real risk that Germany will return Thangarasa to Sri Lanka in violation of Article 3 of the ECHR or at least that the Secretary of State could not properly have held that the claim was manifestly unfounded on the merits. If my Lords agree, this court will have held in Yogathas' appeal that the German procedures under which section 53(6) of the Aliens Act is deployed produce outcomes, at any rate in the context of Tamil asylum seekers such as these two appellants, which do not involve the return of a claimant to his country of origin otherwise than in accordance with the 1951 Geneva Convention. If that is right, it is difficult to see what room in truth there can be for a finding that those self-same procedures nevertheless yield breaches of Article 3 of the European Convention.
62. Collins J cited the decision of the European Court of Human Rights in TI to which I have already referred. The passages he quoted are as follows:

"Having regard to those three factors, the court finds that there is considerable doubt that the applicant would either be granted a follow-up asylum hearing or that his second claim would be granted. There is, on similar grounds, little likelihood of his claims under section 53(4) being successful.

Nonetheless, the court notes that the apparent gap in protection resulting from the German approach to non-State agent risk is met, at least to some extent, by the application by the German authorities of section 53(6). It appears that this provision has been applied to give protection to persons facing risk to life to limb [sic] from non-State agents, including groups acting in opposition to the government, in addition to persons threatened by more general health and environmental risks. It has also been applied to a number of Tamils, including a young Tamil at risk of ill-treatment from security forces due to the presence of scars on his body. The applicant has emphasised the discretionary nature of this provision. The German Government, while accepting that it is phrased in discretionary terms, submits that the courts' interpretation makes it clear that there is an obligation to apply its protection to persons who have shown that they are in grave danger. This submission is supported by the case-law materials referred to. It is also apparent that, notwithstanding the procedural requirements of section 51 of the Administrative Procedure Act, the Federal Administrative Court considers that cases which involve a serious risk to life and personal integrity should be re-examined.

It is true that the Government have not provided any example of section 53(6) being applied to a failed asylum-seeker in a second asylum procedure. The court acknowledges that the previous court decision heavily impugning his credibility is a factor which would also weigh against a claim for protection in this context. However, on the basis of assurances given by the German Government concerning its domestic law and practice, the court is satisfied that the applicant's claims, if accepted by the authorities, could fall within the scope of section 53(6) and attract its protection. While it may be that on any re-examination of the applicant's case the German authorities might still reject it, this is largely a matter of speculation and conjecture. There is, furthermore, no basis on which the court could assume in this case that Germany would fail to fulfil its obligations under Article 3 of the Convention to provide the applicant was [sic] protection against removal to Sri Lanka if he put forward substantial grounds that he faces a risk of torture and ill-treatment in that country. To the extent, therefore, that there is the possibility of such a removal, it has not been shown in the circumstances of the case to be sufficiently concrete or determinate."

63. After setting out the passages to which I have referred in TI Collins J said this at paragraph 19:

"Mr Gill emphasises that the court refers to 'this case' and suggests that the observations are limited to the circumstances of that case [that is TI]. That does not seem to me to be correct. It is plain that the court is accepting that section 53(6) can provide the protection which is necessary to prevent there being a breach of Article 3 by the German authorities and was satisfied that Germany would not expel in breach of the terms of the Convention, and that, although section 53(6) referred to 'danger to life and limb' in the terms that I have already read, nonetheless it was capable of providing the necessary protection."

64. Then after citing a report of the European Council on refugees and exiles upon which Mr Gill had relied, Collins J proceeds as follows (paragraph 22):

"… one cannot get away from the fact that in TI the court considered the whole of the German approach and was satisfied that it did provide the necessary protection because the decision of the court was that the complaint of the applicant, TI, was manifestly ill-founded."

65. Mr Gill places great emphasis on materials before us which demonstrate the existence of a debate within Germany as to the practical efficacy of section 53(6); but this I think invites the court to form a judgment of fact and merit which goes beyond our proper remit. In any event I would accept Mr Underwood's submission, set out in his skeleton argument at paragraph 9 thus:

"(v) After exhausting all domestic remedies in Germany, the Appellant would have a right of individual petition to the European Court of Human Rights.

Germany would scrupulously comply with any request from the European Court of Human Rights (under rule 39) to suspend the execution of a deportation order. There has never been a report of the German authorities failing to comply with such an indication in the case of an order for deportation expulsion or removal.

It is the universal practice of the German Courts and Executive to comply with judgments of the [European Court of Human Rights] in proceedings in which Germany is a party.

There has been no case in which the [European Court of Human Rights] has found Germany to be in violation of Article 3 in respect of the deportation of a rejected asylum seeker."

66. I should say that these are not mere assertions made on behalf of the Secretary of State. Chapter and verse is set out to vouch them, not least from the judgment in TI itself at pages 226H-227D and 230B-232B. Then at paragraph 13 of the skeleton:

"It is entirely plain that, whatever detailed allegations may be made in respect of German domestic law, there is no prospect whatever of a failed asylum seeker who is asserting a risk of article 3 ill-treatment in his country of origin being removed without having access to, in the last resort, the [European Court of Human Rights. Further, it is equally clear that any judgment of the Court would be honoured, and that there are adequate procedures in place in Germany to safeguard against expulsion in the meantime."

67. As I have said, if Yogathas' appeal is concluded against him there is very little margin for further argument in Thangarasa. In my judgment Collins J was entirely right to reject the judicial review application for the reasons he gives, and I would dismiss this appeal also.
68. SIR ANTHONY EVANS:I agree.
69. LORD JUSTICE CHADWICK:For the reasons which Lord Justice Laws has given I agree that these two appeals must be dismissed.
ORDER: Appeals dismissed. Orders made under section 11 of the Access to Justice Act 1999 in both cases, but in both cases the amount to be paid by the appellants is nil. Permission to appeal to the House of Lords refused. Detailed assessment of the appellants' costs. An expedited copy of the transcript to be prepared. (Order not part of approved judgment)