England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Friday 6 April 2001

Friday 6 April 2001

1. LORD JUSTICE SIMON BROWN: The applicant is a Sudanese national who arrived in the United Kingdom on 21 September 2000 and claimed asylum. He was in possession of a French "Schengen" multi-visit visa, issued in Abu Dhabi and valid from 9 September to 8 December 2000. He had been in Abu Dhabi with a working permit for some two years.
2. By letter dated 16 November 2000, the French authorities accepted that, under the terms of the Dublin Convention, France was the country responsible for examining his asylum application. By letter of 22 November, the Home Secretary certified that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act 1999 were satisfied and proposed to remove the applicant to France. That is the decision sought to be challenged in these proceedings.
3. Removal directions were set for 4 December, but on 2 December the applicant obtained a stay of those directions and sought permission to apply for judicial review. The application was refused, initially on the documents by Moses J and then at a renewed oral hearing before Scott Baker J on 19 January 2001. The applicant now seeks permission to appeal to this court against that refusal of permission.
4. He does so, let me make plain, not on any of the grounds previously argued but on two new grounds. That application came first before Brooke LJ on the papers and was adjourned for early determination by the full court with this comment:

"The full court should have the opportunity of deciding whether it is properly arguable that anything in the decision of the House of Lords in ex [parte] Aitseguer relating to EU membership survives the introduction of the 1999 Act, despite what Lord Steyn said in express terms in Adan/Aitseguer [2001] 2 WLR 143 at 151D-E."

5. Before identifying the two points now said to arise, it is convenient first to set out the relevant provisions of the 1999 Act and then to quote the bulk of the decision letter of 22 November.

The 1999 Act

6. Section 11 reads:

"11 Removal of asylum claimants under standing arrangements with member States

(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 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.

(3) Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom -

(a)if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or

(b)before the time for giving notice of such an appeal has expired.

(4) 'Standing arrangements' means arrangements in force as between member States for determining which state is responsible for asylum."

7. Section 65 reads, so far as material:

"(1) A person who alleges that an authority has, 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."

8. I need not read the other subsections.
9. Section 71 reads:

"71 Removal of asylum claimants to safe third countries

(1) This section applies if a certificate has been issued under section 11 or 12.

(2) The person in respect of whom the certificate was issued may appeal against it to an adjudicator on the ground that any of the conditions applicable to that certificate was not satisfied when it was issued, or has since ceased to be satisfied."

10. Section 72 reads, so far as material:

"(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 or to a country designated under section 12(1)(b) 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; or

(b)under section 71."

11. I need not read subsection (3).

The decision letter

12. The decision letter of 22 November 2000 (with paragraph numbers for convenience) reads:

"Immigration and Asylum Act 1999 - Notice of decision to certify asylum application on third country grounds

1. You have applied for asylum in the United Kingdom on the grounds that you have a well founded fear of persecution in Sudan for reasons or race, religion, nationality, membership of a particular social group or political opinion.

2. However, Sudan is not the only country to which you can be removed. Under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (the Dublin Convention) the authorities in France have accepted that France is the member State responsible for examining your application for asylum. By virtue of section 11(1) of the Immigration and Asylum Act 1999 France is regarded as -

(a)a place where your life and liberty will not be threatened by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and

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

3. You are, under paragraph 8.1(c) of Schedule 2 of the Immigration Act 1971, returnable to France, which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.

4. Paragraph 345 of the Statement of Changes in Immigration Rules (HC 395) provides that an application for asylum will normally be refused without substantive consideration if there is a safe third country to which the applicant be sent. The Secretary of State can find no grounds for departing from this practice in your case.

5. Third country certificate

On the basis of his knowledge of the immigration policies and practices of France and on previous experiences in returning passengers to France, the Secretary of State is of the opinion that, in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention. He hereby certifies, therefore, that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act 1999 are satisfied, namely that:

-the authorities in France have accepted that, under standing arrangements, France is the responsible State in relation to your claim for asylum; and

-you are not a national or citizen of France.

6. Right of appeal

You are entitled to appeal to an adjudicator under section 71(2) of the Immigration and Asylum Act 1999 against the decision to certify your application on the ground that any of the conditions mentioned above was not satisfied when the certificate was issued or has since ceased to be satisfied. By virtue of section 72(1) of the Immigration and Asylum Act 1999 you are not, unless the Third Country certificate is set aside on appeal or otherwise ceases to have effect, entitled to appeal under the Immigration and Asylum Act 1999 as respects any matter arising before your removal from the United Kingdom.

7. Because France is a member State of the European Communities you are not, by virtue of section 72(2)(b) of the Immigration and Asylum Act 1999, entitled to appeal so long as you are in the United Kingdom."

13. The letter then gives instructions as to how to appeal.
14. As is well known, the House of Lords in Adan decided that the Home Secretary's opinion that France was a country which would comply with its obligations under the 1951 Refugee Convention was wrong in law in a case where the persecution feared was not directly attributable to the state but was tolerated or encouraged by it; that is, persecution by non-state agents. The passage in Lord Steyn's speech in Adan referred to by Brooke LJ was this, at page 151:

"The Act of 1999

Section 169(3) of and Schedule 16 to the Immigration and Asylum Act 1999 repealed sections 2 and 3 of the 1996 Act. By section 11 of the 1999 Act, a member state of the European Union with which there are standing arrangements, such as the Dublin Convention, for determining which state is responsible for considering applications for asylum, is to be regarded as a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention. The asylum seeker has a right of appeal on the ground that removal to the member state will contravene section 6 of the Human Rights Act 1998: sections 11(2); 65. The Secretary of State can carry out the removal before the right of appeal is exercised if he certifies that the allegation that the removal would breach the asylum seeker's human rights is manifestly unfounded: sections 11(3); 72(2)(a). These provisions of the 1999 Act came into force on 2 October 2000. The issue raised in the present case may still arise in cases where the proposed removal is not to a member state under standing arrangements: section 12 of the 1999 Act."

15. I come at last to the applicant's two new grounds of challenge which, against the extensive background I have now set out, I can deal with comparatively shortly. The first ground is that the Secretary of State, in exercising his discretion to certify the case under section 11(2)(a), had regard to an irrelevant consideration. This argument is founded on the first sentence in paragraph 5 of the decision letter which, it is suggested, "is tainted by a plain misdirection of law" because it conflicts with the decision in Adan.
16. There are in my judgment two complete answers to that argument. First, the impugned sentence is, to my mind, plainly superfluous. The Secretary of State's decision had already been taken under the deeming provision: see paragraph 2 of the letter, which in terms sets out the provisions of section 11(1) of the Act. Parliament has, it is clear, in unambiguous terms dictated that henceforth France, amongst other member states, is to be regarded as a safe third country. Of course the Secretary of State is not bound to certify in every case, but where he chooses to do so, in my judgment that certificate cannot be impugned on grounds that France after all is not properly to be regarded as a safe third country.
17. Secondly and in any event, paragraph 5 of this decision letter refers to the Secretary of State's opinion "in the circumstances of your particular case". At the date of that certificate, the applicant's claim for asylum had been put forward exclusively on the footing that he feared state persecution. At interview on his arrival in this country, he was asked: "From whom do you fear persecution?" To which he answered: "I am wanted by the Sudanese Government". The next question was: "Do you fear persecution from anybody in Abu Dabi?" To which he answered: "No I am not in fear of anybody there." Abu Dhabi, it will be remembered, is the country from which he had just arrived and to which it may well be that France could itself consider returning him.
18. Those questions were put to the applicant in Arabic through an interpreter. The suggestion of an alleged fear of persecution by non-state agents first appears in the applicant's claim form and grounds dated 1 December 2000; that is, after the Secretary of State's certificate and just before the applicant was due to be removed to France.
19. I come then to the applicant's second new ground of challenge. This alleges that paragraph 7 of the decision letter, which tells the applicant that he can only exercise his right of appeal from abroad, is erroneous in law. The contention is that:

". . . in addition to a right of appeal out-of-country under section 71(2), the Claimant has an in-country right of appeal under section 65 on the grounds that the decision to remove him to France is a breach of his human rights. That appeal can be exercised whilst the Claimant remains in the UK, unless the [Home Secretary] certifies under section 72(2)(a) that the appeal is manifestly unfounded."

20. Mr Juss recognises that the applicant was not himself misled by this advice, but nevertheless submits that the court should grant relief because of the general importance of the point. Indeed, runs the argument, giving wrong advice of this sort is not merely unfair, but an abuse of power.
21. Again, to my mind there is nothing in the point. Regulation 4(4) of the Immigration and Asylum Notices Regulations 2000 (which came into force under the 1999 Act on 2 October 2000) provides:

"No notice of decision is required to be given. . . by reason only of the fact that the decision could be appealed under section 65 of the 1999 Act . . . if the person in question were to make an allegation that an authority had acted in breach of his human rights in taking it; but such notice must be given upon such allegation being made."

22. At the time of the Secretary of State's decision letter of 22 November, the applicant, as already indicated, had not made any allegation or raised any issues in relation to human rights. Indeed, when asked whether there were any compassionate reasons for considering his application in the UK rather than in France, he had stated simply:

"England used to rule our country & they would be able to understand us better. My second language is English & therefore I would be able to live better here than in France."

23. Mr Juss seeks to erect an argument that, based upon the circumstances of others in the Sudan, the Secretary of State ought, so to speak, to have deemed there to have been a complaint of persecution by non-state agents and to have assumed there were allegations of relevant human rights violations. To my mind this is a most extravagant and unconvincing argument.
24. There was, accordingly, no error, and nothing misleading, in the certificate with regard to appeal rights. It is not necessary, in effect, for the Secretary of State, in such a document, to invite in advance an allegation that the asylum seeker's removal to a safe third country would involve a human rights violation.
25. Despite, therefore, the continuing urgency and ingenuity of the applicant's arguments, in my judgment there is simply no proper basis for a legal challenge to this certificate of 22 November 2000.
26. I add only this. The Secretary of State has not yet certified, under section 72(2)(a) of the Act, that any section 65 appeal which the applicant sought to bring on human rights grounds would be manifestly unfounded. He has, however, indicated in the papers that, having regard to the basis upon which the asylum claim was initially made, and the way in which it came to be expanded only in the initiating court documents, he would be minded to regard this as a case in which such a certificate could appropriately issue. It is not for us to reach a decision upon that matter today. I think is right, however, to comment that, if such a certificate were to issue, in my judgment it would be a difficult certificate to challenge.
27. For the reasons given, I would dismiss this application.
28. LORD JUSTICE TUCKEY:I agree.
29. The second of Mr Juss's grounds suggests that the applicant should be deemed to have made an allegation that his removal from the United Kingdom would involve a breach of his human rights because the Secretary of State knew, firstly, that France would not have regard to the fact that he feared persecution from non-state agents and, secondly (from his knowledge of conditions in Sudan) that if France did return him to Sudan he would be so persecuted.
30. The regulation which my Lord has cited required the allegation "to be made". There is no scope in my judgment for deeming. Moreover, on the facts of this case the point is hopeless because at the date of the letter the applicant had not alleged that he feared persecution from non-state agents. As I understand it, even now no allegation of breach of human rights has been formally made. If it is, as my Lord has said, it will be open to the Secretary of State to certify that it is manifestly unfounded under section 72 of the 1999 Act. That decision, as Miss Giovanetti accepts, would be amenable to judicial review. However, like my Lord, I do not think that this should be taken as encouraging the applicant to do so because I think such a challenge would have little, if any, prospect of success for the simple reason that the Secretary of State has said (as he is entitled to do) that he disbelieves the applicant's late assertion that he fears persecution from non-state agents. Absent such fear any allegation of breach of his human rights does not get off the ground.
31. LORD JUSTICE MANCE: I agree with the comprehensive and, to my mind, conclusive reasoning of both my Lords.
ORDER: Application refused. Public funding assessment of the applicant's costs. (Order not part of approved judgment)