England and Wales High Court (Administrative Court) Decisions

Queen on the application of SANTIA YOGATHAS v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 377 (25th May, 2001)

Case No: CO/2787/00

Neutral Citation Number: [2001] EWHC Admin 377

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 25^th May 2001

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 is, furthermore, consistent with the approach in the United Kingdom; (7) any Sri Lankan asylum seekers returned by Germany are returned to Colombo, whereas the LTTE is in control only of the Jaffna peninsula; (8) the question of the state's factual inability to provide protection in LTTE controlled areas simply does not arise; (9) the decision to certify is therefore not open to challenge on the basis of the ratio of Adan, and the Secretary of State's approach is lawful and rational. Various subsidiary points are also made, including that the recognition rate in Germany is higher than in the United Kingdom; fresh asylum claims can be made in Germany on broadly similar grounds to those in the United Kingdom; and Germany would honour its obligations under the European Convention on Human Rights.

Issues

12. The case advanced by Mr Manjit Gill QC for the claimant involves three main areas of contention:

i) Because the German law in relation to non-state agents is defective, the claimant's claim to fear persecution from the LTTE will not be considered in Germany in a manner which accords with the Convention. That is a sufficient reason why the Secretary of State could not lawfully certify the case under s.2(2)(c).

ii) German law is also defective in relation to organs of the state, in that the actions of state agents are not always attributed to the state. That is a further reason why the claimant's claim will not be considered in Germany in accordance with the Convention and why the Secretary of State's decision is unlawful.

iii) In any event the German law in relation to internal flight is not in accordance with the Convention. Internal flight is not always considered. When it is considered it is tainted by the accountability theory and it does not involve the application of the same test of reasonableness as applied in the United Kingdom. Accordingly the Secretary of State could not lawfully rely on the German approach to internal flight as the basis for his opinion under s.2(2)(c).

13. Mr Gill had additional points to the effect that the Secretary of State cannot rely on German practice or on alternative forms of protection as remedying the consequences of those defects, but those points became merged in the development of the main submissions and can be dealt with adequately when considering those submissions. No issue was taken before me with the German approach towards the acceptance of fresh claims to asylum following rejection of an earlier claim.

Is certification precluded by Adan?

14. Mr Gill submits that it follows from the application of the accountability theory that the claimant's claim to fear persecution from the LTTE will not be considered in Germany in accordance with the Convention. The German approach to non-state agents led the Court of Appeal to find against the Secretary of State's certificate under s.2 in Subaskaran, where the claim to asylum was based on a similar fear of persecution from the LTTE. The decision of the Court of Appeal in Subaskaran itself was not appealed, but in any event the basis upon which the court reached its decision was upheld by the House of Lords in Adan. The present case gets no further than Subaskaran and is covered by the reasoning in Adan. It is accepted in the Secretary of State's evidence that as a matter of legal theory a person who feared persecution from the LTTE in the north could be returned to Sri Lanka by the German authorities simply on the basis that such a fear of persecution could not be attributed to the state. The Secretary of State goes on to rely on German practice in relation to internal flight. But whatever the position may be in relation to internal flight, it cannot avail the Secretary of State. Even the theoretical risk that the claimant could be returned in breach of the Convention is sufficient to make it unlawful for the Secretary of State to certify that s2(2)(c) is fulfilled. The claimant is entitled to have his claim considered in accordance with the Convention but that will not happen if he is removed to Germany.

15. I reject those submissions for the following reasons. First, as submitted by Mr Ian Burnett QC for the Secretary of State, the relevant question is whether the Secretary of State was entitled to form the opinion that the German authorities would not send the claimant to Sri Lanka (or elsewhere) otherwise than in accordance with the Convention. That is the statutory test. The foundation of the test is the obligation under Article 33 of the Convention that "No state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". The focus is on ensuring that an asylum seeker is not sent back in circumstances where he or she would be at risk of persecution: if he or she is sent back, it must be in accordance with the Convention. It is a focus on the end result rather than on the precise procedures by which that result is achieved. Moreover the concern is an intensely practical one, rather than theoretical.

16. Adan does not support the view that, if the third country's interpretation of the Convention is in any respect defective, that necessarily precludes certification under s.2(2)(c). It was common ground in Adan that Germany and France, by reason of their adoption of the accountability theory in the interpretation of Article 1A(2) of the Convention, would probably send the applicants back to their countries of origin (see e.g. per Lord Steyn at 150D). If their interpretation of Article 1A(2) was incorrect, as was held to be the case, then it followed that they would send the applicants back otherwise than in accordance with the Convention. So the focus was on sending the applicants back; and the finding that the Secretary of State was not entitled to certify the cases under s.2 was based squarely upon the facts of the individual cases as they were accepted to be for the purposes of the issue of principle that the House of Lords was called upon to resolve.

17. Moreover the question whether alternative procedures existed for the protection of asylum seekers in Germany and France was expressly left open by the House of Lords in Adan (see e.g. 150E, 158C). If Mr Gill's submissions in the present case were correct, that would be an irrelevant question. Yet there is nothing in the judgments to suggest that it was considered to be an irrelevant question. The same point may be made in relation to the judgment of the Court of Appeal in Adan, which likewise contemplated that alternative forms of protection might prevent an asylum seeker being sent back in breach of the Convention (1299G-1300). The court expressly rejected an argument that certification was precluded by the fact that the asylum seekers would not enjoy anything like the same basket of social rights within the country of refuge as was guaranteed under the Convention:

"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" (1300C).

18. That s.2(2)(c) is concerned with practical rather than theoretical risks is supported by R v. Secretary of State for the Home Department, ex parte Canbolat [1997] 1 WLR 1569. The Court of Appeal was not concerned in that case with issues of the kind raised in the present proceedings, but what it said about the content of the test under s.2(2) is material because of the emphasis it places on real risk rather than remote (or, a fortiori theoretical) possibilities:

"This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by s.6 of the Act of 1993. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations. All that can be expected and therefore all that Parliament could have intended should be in place prior to the grant of a certificate was a system which can be expected not to contravene the Convention. What is required is that there should be `no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention'. The unpredictability of human behaviour or the remote possibility of changes in administrative law or procedures which there is no reason to anticipate would not be a real risk" (1577).

19. For those reasons the Secretary of State was in my judgment entitled to consider the practical realities of the matter and to decide whether there was a real risk that the German authorities would send the claimant back to Sri Lanka in breach of the Convention. He did just that. He obtained detailed information about the legal and practical approach of the German authorities to the question of non-state agent persecution generally and in particular the way in which Sri Lankan claims are dealt with. He repeatedly took advice from Professor Hailbronner. He considered not just the theoretical possibilities stemming from the accountability theory, but the way in which matters would be handled in practice and whether the practical outcome would be the same in Germany as in the United Kingdom. He formed the view that the practical outcome would be the same because in practice the German authorities would consider the question of internal flight and would not return the claimant to Sri Lanka unless the internal flight test was satisfied. Whether he was right in concluding that the German approach to internal flight would produce the same result as in the United Kingdom is the subject of a separate issue. For present purposes what matters is that it was a relevant question and that if he was right in the conclusion he reached on that question, then he was entitled to certify the case under section 2. If the German authorities would not send the claimant back to Sri Lanka otherwise than on the basis of internal flight, considered in a manner that accords with the Convention, then they would not send him back otherwise than in accordance with the Convention.

German approach to acts of state agents

20. As the case was put by Mr Gill, the second issue formed part of the first, in that he submitted that, because of the adoption of the accountability theory, the German authorities also take an erroneous approach towards persecution by state agents and this is a further reason why the claimant's claim (which includes a claim to fear persecution by state agents) will not be considered in accordance with the Convention and why the Secretary of State could not lawfully certify under s.2 irrespective of the question of internal flight. But the issue also has an obvious bearing on the question of internal flight itself, since an error of approach towards persecution by state agents would be liable to taint consideration of the safety limb of the internal flight alternative. I have therefore broken it out into a separate issue.

21. The case advanced by Mr Gill is based on passages in the judgment of the European Court of Human Rights in TI v. United Kingdom [2000] INLR 211. In that case the court declared inadmissible an application by a Sri Lankan Tamil who was removed from the United Kingdom to Germany pursuant to a certificate under s.2 of the 1996 Act. Two passages are relied on. 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 attributable to the State. State complicity may be shown where torture is practised as part of the police or military structure of a State."

22. Those passages, it is submitted, show that certain actions of state officers in Sri Lanka are not attributed by the German authorities to the state because they are considered as isolated events. Yet the background evidence indicates that such incidents are more than isolated events. The United Kingdom authorities, faced with a claim relating to the actions of individual officials, will consider that matter in the context of whether there is sufficiency of protection. It appears that the German authorities, because of their reliance on the accountability theory, will not regard such actions as engaging the Convention in the absence of a systematic practice. In any event it is to be inferred that the German authorities either interpret the Convention differently on this point or adopt a perverse application of it.

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 apply the sanctions, in accordance with the concept of sufficiency of protection examined in Horvath v. Secretary of State for the Home Department [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 (pages 157 and 178 of the court bundle). 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.

Internal flight

24. The issue of internal flight was raised in Subaskaran (where there was a similarly worded decision letter on the point) but was not considered by the Court of Appeal. The court limited its consideration to the general point of principle concerning the German approach to non-state agents. The issue left on one side in Subaskaran now falls for decision.

25. Although the Convention does not deal in express terms with the principle of internal flight, it has been recognised as being inherent in the Convention. International protection is not necessary if the home state can afford a safe haven or internal flight alternative where the claimant would not have a well-founded fear of persecution for a Convention reason and where it would be reasonable for him to go and to stay. A detailed discussion is to be found in R v. Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, in particular at 938-939, where it is said inter alia that a contemporary understanding of the obligations created by the Convention is reflected in paragraph 8 of the Joint Position of 4 March 1996 of the Council of the European Union:

"Relocation within the country of origin

Where it appears that persecution is clearly confined to specific part of a country's territory, it may be necessary, in order to check that the condition laid down in article 1A of the Geneva Convention has been fulfilled, namely that the person concerned 'is unable or, owing to such fear (of persecution), is unwilling to avail himself of the protection of that country,' to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move."

26. In the present case the Secretary of State relies on the consideration given to internal flight by the German authorities as plugging the protection gap that would otherwise exist in a case where an asylum seeker claims to fear persecution from non-state agents. I have referred already to the reasons given in the letter of 18 September 2000. The material aspects here are that, pursuant to Germany policy and practice, (i) if the claimant were returned to Sri Lanka, he would be returned only to Colombo and it would be open to him to remain in Colombo or any of the other areas of Sri Lanka outside LTTE control, (ii) in such areas the state is willing and able to provide sufficient protection to those in fear of persecution from non-state agents, and (iii) before so returning him the German authorities would assess whether it was reasonable for him to relocate within Sri Lanka, and their approach to that issue of internal flight would be in accordance with the Convention and entirely consistent with that of the United Kingdom.

27. It is common ground that where internal flight is considered by the German authorities in relation to an asylum seeker claiming to fear persecution from non-state agents, it is considered under section 53(6) of the Aliens Act. Section 53(6) provides that "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." It affords a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. It is not necessary for the danger to emanate from the state or to be attributable to the state. The suspension of deportation if the conditions are met is for a limited period but is renewable. There is a discussion of the effect of s.53(6) in TI v. United Kingdom at 230-1.

28. The Secretary of State's position is that the operation of section 53(6) provides an alternative form of protection whereby asylum seekers claiming to fear persecution from non-state agents are in practice sent back from Germany to their country of origin only if the conditions for the internal flight alternative under the Convention are met.

29. Mr Gill's challenge to that position boils down to two main points. First, that on the evidence there can be no confidence that the issue of internal flight will be considered at all by the German authorities. Secondly, that the German approach to internal flight is defective and unsafe and does not amount to a correct interpretation of the Convention, so that the reasoning in Adan applies and the Secretary of State cannot lawfully certify under s.2(2)(c) that Germany would not send the claimant to another country otherwise than in accordance with the Convention.

Will internal flight be considered?

30. As to the first point, Mr Gill submits that the evidence before the court does not establish an invariable practice of considering internal flight in cases such as those of the claimant.

31. The Secretary of State's letter of 18 September 2000 stated in paragraph 13 that he was aware that in cases where persecution is alleged to emanate from non-state bodies the German authorities "will consider" the internal flight alternative. In paragraph 12 of his first witness statement, Mr Taylor states that 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. In paragraph 18 of the same witness statement he repeats the point and says: "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."

32. In paragraph 19 Mr Taylor refers to further inquiries of the German authorities. Question (i) sets out his understanding that a Sri Lankan asylum seeker who had established a well founded fear of persecution from the LTTE in the north of the country would not in practice be returned without consideration of internal flight, and asks whether that understanding is correct. Question (ii) asks whether there is an awareness of any case where Germany has accepted that a Sri Lankan asylum seeker faced a real risk of persecution from the LTTE in the north of the country and returned him without consideration of the availability of internal flight. Question (iii) asks whether the availability of internal flight is always considered in such cases. In his second witness statement Mr Taylor records the result of those inquiries:

"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 for the Recognition of Foreign Refugees ... is aware of no case where LTTE persecution was claimed and the availability of internal flight was 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. It is of course always particularly difficult to establish a negative. If those acting for the Applicant are aware of any cases where this practice has not been followed the Secretary of State is of course always prepared to give further consideration to this matter" (original emphasis).

33. Question (ii) was also put to the UNHCR. In a response dated 12 March 2001 the UNHCR gave the results of a review of approximately 200 decisions taken by the Federal Office for the Recognition of Foreign Refugees (i.e. first instance decisions). In only 27 cases did the asylum applicant claim persecution by the LTTE alone. Of those 27 cases, only 11 applicants were regarded as "credible and as relevant" with regard to the German law on asylum. The letter goes on:

"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 these 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 regarded as irrelevant in the light of German jurisprudence on the agent of persecution issue and Section 53 Aliens Law, which provides for protection in cases of persecution by non-(quasi-)state agents, was not individually examined. Further, in 8 cases the applicant's claim was considered as not credible."

Attempts to obtain clarification of the UNHCR letter prior to the hearing before me were unsuccessful.

34. Mr Gill seizes on Mr Taylor's reference to the German authorities' confirmation that there is "normally" no expulsion without consideration of internal flight, and on the indication in the UNHCR's letter that internal flight was not examined in the 8 cases where persecution at the hands of the LTTE was regarded as irrelevant. Those matters, he submits, mean that one cannot have sufficient confidence that the German authorities will consider internal flight in the claimant's case.

35. For my part, I do not attach great significance to the use of the word "normally" in circumstances where the relevant official is said to be aware of no case where LTTE persecution was claimed and the availability of internal flight was not considered. It is understandable that official caution might tell against the assertion that it never happens, albeit that it is not known to have happened: the difficulty of proving the negative is something to which Mr Taylor referred in his witness statement. On the other hand 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 the 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 e.g. 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.

The German approach to internal flight

37. I turn to examine the question whether the German authorities, when considering internal flight, do so in a way that is in accordance with the Convention. Here too there are two aspects to the case advanced. First, Mr Gill stresses the importance of a methodical approach to the evaluation of an asylum claim (see per Sedley LJ in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449, 473j-474d). He submits that the German authorities do not adopt such an approach in the case of a claimed fear of persecution from non-state agents. Because they do not consider such a fear to be relevant for asylum purposes, they go straight to the end point of internal flight in Colombo. This leads to internal flight being looked at through an improper filter which potentially distorts the outcome of the inquiry. For example, to assess an applicant's fear of the LTTE in Colombo it is necessary to give proper consideration to his alleged fear of the LTTE in the north. So too what happened to him in the north may be relevant to his medical, housing or social needs and may therefore affect the reasonableness of relocation in Colombo. The failure to give proper consideration to the claimed fear of persecution from the LTTE in the north is therefore liable to distort the assessment of the internal flight alternative and to produce a result contrary to the Convention.

38. I have not found that aspect of Mr Gill's case persuasive. There is no necessary problem in considering internal flight without first having gone through a full Convention-compliant analysis of the claimed fear of persecution from the LTTE in the north. Judicial review challenges are not infrequently rejected in our own courts on the ground that, even if a special adjudicator has erred elsewhere in his assessment of the claimed fear of persecution, he has reached an unimpeachable conclusion on internal flight which provides a sufficient alternative basis for rejecting the asylum claim. Mr Burnett referred me to a number of decisions of that kind. I myself have refused applications on the same ground.

39. It is of course important to guard against the possibility that failure to consider an earlier stage of the analysis, or an erroneous consideration of an earlier stage, may have tainted the consideration of the internal flight alternative. But I do not accept that the accountability theory inevitably has that consequence or that, on the evidence before me, there is a real risk of it happening in practice. As to the safety limb of the internal flight alternative, the evidence does not undermine the Secretary of State's view that the Sri Lankan authorities are willing and able to provide sufficient protection against the LTTE in Colombo (nor, indeed, is there anything to suggest that this particular claimant does fear persecution from the LTTE in Colombo). Further, the German approach to persecution from state agents is the same as that in the United Kingdom: I have already rejected the argument that the German authorities adopt a different and erroneous approach in relation to the acts of individual officials. As to the reasonableness of requiring an applicant to relocate, there is nothing in the evidence to show that, because persecution by the LTTE is not considered to be capable of founding an asylum claim, the German authorities fail to take into account the factual circumstances surrounding an alleged fear of persecution from the LTTE in the north when considering the issues relevant to internal flight in Colombo (though I would also observe that the examples of potential impact given by Mr Gill struck me as somewhat remote and speculative in practice).

40. The second aspect of Mr Gill's submission is that the German authorities apply a harsher test in relation to the reasonableness limb of internal flight than is applied in the United Kingdom. As to the test in the United Kingdom, he refers in particular to the decision of the Court of Appeal in Robinson at 939H-940C:

"In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example .... (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights. So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights and freedoms without discrimination. In the Thirunavukkarasu case ... Linden JA, giving the judgment of the Federal Court of Canada, said: 'Stated another way for clarity ... would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?'"

Later in Robinson, at 943B-D, the court summarised the correct approach in these terms:

"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, ante, 939H-940B, appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden J.A. 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 a particular part of the country."

41. In Karanakaran (above), at 456h, Brooke LJ observed in relation to the test laid down in Robinson:

"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 that it would be unduly harsh."

42. Very rigorous though the test may be, Mr Gill submits that the approach in the United Kingdom ensures that certain basic norms of humanitarian rights (civil, political and socio-economic) must prevail in the area of relocation if in all the circumstances it is to be reasonable to require an individual to relocate there; whereas the German approach starts from the general premise that internal flight is only excluded if conditions in the area of relocation fall below those necessary for economic survival, i.e. that the applicant faces an imminent danger to life and will in the foreseeable future suffer from famine, pauperisation and eventual death. Further, the German test does not relate in principle to the individual's circumstances, so that whether or not individual circumstances are taken into account in its application is of no comfort. The test remains rooted in an erroneous approach which starts from the wrong standpoint.

43. In support of the contention that the German test is unduly restrictive, Mr Gill points to the absence of a single example of a German case where internal flight in Colombo has been held not to be available to a Sri Lankan asylum seeker fearing persecution from the LTTE in the north. By contrast, he submits, there are cases in the United Kingdom where it has been held that it would be unduly harsh to return such an asylum seeker to Colombo.

44. I take as my own starting-point the decisions of the Divisional Court and Court of Appeal in R v. Secretary of State for the Home Department, ex parte Besnik Gashi [1999] Imm AR 231 and 415. One of the issues in that case was the German approach to internal flight, in respect of which the Secretary of State had relied, as in the present case, on advice from Professor Hailbronner (see 241-2). The Divisional Court took the view on the evidence before it that German substantive law on internal flight was "very similar" to that applied in this country (per Brooke LJ at 247). The Court of Appeal agreed (per Buxton LJ at 424), though it allowed the appeal on other grounds. Since there is additional evidence before me and Besnik Gashi was decided in the pre-Adan legal context, it is common ground that I am not bound by it. Nonetheless Mr Gill does need to satisfy me that the additional evidence now before me paints a materially different picture from that observed by the courts in Besnik Gashi.

45. As to the evidence, I think it right to refer first to the reasons letter of 18 September and to Mr Taylor's witness statement, which makes clear that the Secretary of State has made extensive inquiries of the German authorities as to the practice in Germany. The information received is summarised in 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."

46. The expert evidence in the case comes from familiar and eminent sources: on the one hand Professor Hailbronner, from whom the Secretary of State has obtained a number of opinions; on the other Dr Marx, with additional comment from Professor Goodwin-Gill. It is convenient to start with Dr Marx. The most relevant part of his evidence is in a passage of an opinion of 21 June 1999 (prepared for Subaskaran) where, having referred to the UK test in Robinson, he describes the German approach and his comparative assessment in these terms:

"The Federal Administrative Court has ruled that with regard to the 'alternative' region it is sufficient if the claimant 'may expect not more than what is indispensably required to make a living there or a bit more ....

The applied test so far is a general one, and, in principle, does not consider individual particularities of the claimant. 'Sufficient possibility of economic survival', thus, means that the notion of internal flight alternative is applied, unless it can - on a general basis - be demonstrated that the claimant will for the foreseeable future suffer from famine, pauperization and, finally, may die .... This demonstrates that the notion of 'economic survival' is applied, unless the claimant can establish that he or she will face an imminent danger of life ....

It is obvious that this very restrictive test of 'economic survival' is far below the 'unduly harsh test' which considers basic norms of civil, political and socio-economic human rights, whereas the German approach is only premised on the mere right not to die ...."

47. Professor Hailbronner's fullest and most up-to-date exposition is contained in his opinion of 18 December 2000, which addresses both the general issue and the particular observations of Dr Marx. Although Professor Hailbronner appears to accept Dr Marx's starting point, he gives a materially different description of the practical application of the "economic survival" test and disagrees with the conclusion reached by Dr Marx as to the differences between the German and UK approaches:

".... The economic survival is defined by German courts as a situation which must enable the asylum seeker permanently a life which will not result in hunger, misery and finally death and which ensures everything that is indispensable for surviving .... The courts in examining this requirement will take into account the individual situation of an asylum seeker. An 'internal flight alternative', for instance, may not be available if the asylum seeker due to his age or due to his disability may not be able to make a living and therefore ensure his basic economic existence. A flight alternative may also not be available if an asylum seeker in case of return may not have any relatives or friends in which he or she can find support or shelter .... An 'internal flight alternative' may also be denied if an economic existence cannot be ensured by an acceptable employment or by any other means ....

Almost all decisions of administrative appeal courts deal intensively with the issue of the economic and social situation in Colombo in the case of returning Tamils ....

I conclude that the German courts will not apply the 'internal flight alternative' in the absence of basic economic living conditions. It is generally assumed, however, that in Colombo there are sufficient economic living conditions in order to secure the economic existence of returning Tamil asylum seekers. It is correct to say that the fact that living are poor in the area concerned would not of itself be sufficient to rule out the 'internal flight alternative'. The threshold is whether in consideration of all the individual circumstance of the case an asylum seeker is deprived of the means indispensable for the economic survival.

....

Concerning the test of 'sufficient possibility of economic survival' Mr Marx has correctly described the test applied by the Federal Administrative Court whereby it is sufficient if the claimant may expect what is indispensably required to make a living there or a bit more. I do not, however, join in his conclusion that this test of economic survival is far below the 'unduly harsh test' which considers the basic norms of civil, political and socio-economic human rights. In my view the test applied by German courts, although it is clearly to be distinguished from a test of decent economic living conditions and therefore cannot be compared with German living conditions, this does not mean that the general socio-economic and political conditions are not taken into account. The fact, that political conditions are not dealt with by German courts in this connection, is simply due to the fact that this requirement is dealt with in the context of political persecution. German administrative courts, however, usually make an intensive inquiry into the economic and social conditions of Tamil asylum seekers. Frequently, they base their test on a comparison of the economic situation in the area of internal flight safety with the economic situation of the original place of origin. It is assumed that asylum shall give protection only against those evils which are caused particularly by political persecution. There is no protection against evils caused by general bad living conditions in the country of origin. Therefore, I do not concur with the conclusion of Mr Marx that there is a substantial difference between the two tests applied. It would, however, be necessary to engage in a detailed examination of UK Court decisions to support my argument."

48. In a further opinion on alternative forms of protection in Germany (pages 162-174 of the court bundle), which is undated but appears to precede the opinion of 18 December 2000, Professor Hailbronner gives a fuller account of the background to section 53(6) of the Aliens Act under which the issue of internal flight is considered. That opinion might be thought to present a picture somewhat closer to the view of Dr Marx. For example, Professor Hailbronner observes:

"The Federal Administrative Court repeatedly has insisted - contrary to a certain trend in lower courts - that in any case the application of Sec. 53(6) requires an 'extreme danger' which would expose a person to be deported to an almost certain death or severe violations of personal integrity."

On the other hand he goes on to state on the next page:

"There is a large number of administrative court decisions granting protection under Sec. 53(6) which are difficult to describe in a systematic order. It appears from the survey of administrative court jurisprudence that - notwithstanding the requirements postulated by the Federal Court - there is a large amount of discretion how to interpret the requirement of a concrete danger for life and personal integrity."

In the circumstances I think it right to concentrate on Professor Hailbronner's opinion of 18 December 2000 since it focuses most clearly on the matter here in issue.

49. Mr Gill also relies on an opinion of Professor Goodwin-Gill dated 22 June 1999, but it is unnecessary to lengthen this judgment by quoting from it. The opinion is directed largely to broader issues. In relation to internal flight it provides a commentary on the views of Dr Marx and on views expressed by Professor Hailbronner in an earlier opinion; but on the reasonableness limb of the internal flight test I do not think that it adds materially to the evidence of Dr Marx and Professor Hailbronner themselves.

50. In the light of the expert evidence, it is plain that there are differences between the UK approach and the German approach to the internal flight alternative. In particular:

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, i.e. 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 in 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. The question for the court is whether those differences are such that the Secretary of State could not lawfully reach the conclusion he did under s.2(2)(c). In that respect it is convenient to refer next to what Mr Burnett described as his fall-back submission, namely that if there are significant differences in approach, they result not from a different interpretation of the Convention but from a difference in practical application. Where there is a difference only in application, it is submitted that the relevant question for the Secretary of State is whether it imposes such practical obstacles in the way of the claimant as to give rise to a real risk that he might be sent to another country otherwise than in accordance with the Convention, and that this is a question of fact reviewable only upon Wednesbury grounds. For that proposition, reliance is placed on the judgment of the Court of Appeal in Adan at [1999] 3 WLR 1293D-F and the subsequent discussion of the decisions in Canbolat, Iyadurai and Kerrouche; and it is said that the substance of the distinction drawn by the Court of Appeal between interpretation and application survives the actual decision of the House of Lords in Adan. For example, Lord Slynn states in Adan at 147H:

"There may be cases where 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."

52. For the purposes of this argument Mr Burnett accepts that the proper interpretation of the Convention incorporates the concept of reasonableness as referred to in Robinson: that is to be found not only in the EU Joint Position, quoted above, but also in paragraph 91 of the UNHCR handbook. In determining whether it is reasonable to expect an asylum seeker to relocate, a decision-maker will take into account various factors or tests, including in this country the "unduly harsh" test identified in Robinson and in Germany the test of "economic survival" described above. But those differences, it is submitted, go to application, not to interpretation.

53. In my view it makes sense to examine internal flight in terms of the interpretation of the Convention even though it is inherent in the Convention rather than covered by its express terms. I also agree with Mr Burnett that the Convention is to be interpreted as embodying in this respect the test of reasonableness as referred to in the EU Joint Position and elsewhere. Robinson makes clear that undue hardship and other considerations are not in themselves the ultimate Convention test but are factors to be taken into account in determining the essential question whether a person can reasonably be expected to relocate.

54. There are, however, distinct difficulties about Mr Burnett's fall-back submission based on the distinction between interpretation and application. This aspect of internal flight is considered in Germany, at least in cases such as the present, not as a direct part of asylum law but only indirectly in the context of the alternative protection provided by section 53(6). That provision has the incidental consequence of plugging a gap in the asylum law. But in itself it reflects a basic constitutional right to be protected from danger to life or personal integrity, rather than a particular interpretation of the Convention. Moreover I cannot find in the expert evidence any clear statement as to the German interpretation of the Convention in relation to this aspect of internal flight. There is not even a positive statement to the effect that the application of section 53(6) is seen as determining whether or not an asylum seeker can reasonably be expected to relocate (though there is one passage in Professor Hailbronner's undated opinion on alternative forms of protection where he states, in relation to standard of proof, that "The individual fear of a refugee to be exposed to an extreme general danger is considered as giving rise to protection under Sec. 53(6) if by an objective evaluation of all the circumstances of his case it would be unreasonable to deport the alien to the respective state"). The issue is examined in the evidence largely by reference to the practical application of section 53(6).

55. All of that makes it difficult to resolve the issue by reference to the German interpretation of the Convention. It is not clear that the German approach is based on the same interpretation as the UK approach. Equally, however, it cannot be said that the German approach is based on an incorrect interpretation of the Convention. There is not the same kind of clear-cut answer on the question of interpretation as was available in Adan.

56. It also follows that one cannot automatically apply what was said in the Court of Appeal in Adan about mere differences in application. Nevertheless it seems to me that the position here is a very similar one. It is necessary to go back to the opinion that the Secretary of State was required to form in order to certify under section 2. So far as material to this issue, and on the basis of what I have said about the relevant Convention test, the Secretary of State had to be satisfied that, given the German practice in relation to internal flight, there was no real risk that this claimant might be sent back to Colombo in circumstances where he could not reasonably be expected to stay there (or in another part of Sri Lanka under government control). That was essentially a factual judgment for the Secretary of State, reviewable on Wednesbury grounds.

57. In assessing whether the conclusion reached in this case was reasonably open to the Secretary of State, it is necessary to take account of the differences in approach between Germany and the United Kingdom and to measure them against the Convention test of reasonableness of relocation. It is also necessary to bear in mind that the Secretary of State was certifying in relation to a particular applicant whose case does not present any special features that might cause any of the differences in approach to have a special significance.

58. On that basis, and looking at the matter in the round, I have concluded (though not without a degree of hesitation) that it was reasonably open to the Secretary of State to certify in this case. I do not think that the differences in the German approach are so great as to compel the conclusion that removal of the claimant 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.

59. Accordingly I reject the case advanced by Mr Gill on this issue too, whilst acknowledging that it is a stronger case than in relation to the other issues that I have considered.

Other issues

60. Mr Gill identified as a separate main issue whether the Secretary of State can avoid the consequences of a defect in German asylum procedures by saying that Germany will in fact consider whether protection exists in another part of the country. That issue is adequately covered by what I have already said and it is unnecessary to deal with it further.

61. There was some suggestion in the written material that the Secretary of State might seek to support his decision on the basis that Germany could be expected to comply with its obligations under the European Convention on Human Rights. That was not, however, advanced in Mr Burnett's oral submissions. I am sure that he was right to adopt that course. At least in the circumstances of the present case the Secretary of State's certificate under s.2(2)(c), if otherwise unlawful, could not in my view be saved by reference to the position under the ECHR. I therefore do not need to consider whether the Secretary of State was entitled to conclude, as he did, that Germany could be expected to comply with its obligations under the ECHR.

Conclusion

62. For the reasons I have given, the application for judicial review must be dismissed.

MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in that judgment, the application for judicial review is dismissed.

MR BURNETT: My Lord, we are grateful for the judgment and the speed with which your Lordship was able to provide it. My Lord, I understand that the claimant has a funding code certificate. A copy has been filed with the court, although I should say, perhaps with a little moan, that no copy was provided to the defendant. But in those circumstances, I seek the defendant's costs, not to be enforced without leave.

MR JUSTICE RICHARDS: Yes, or whatever the ---

MR BURNETT: The appropriate ----

MR JUSTICE RICHARDS: -- current and more refined form of Community Legal Service Funding order is, yes.

MR BURNETT: Thank you, my Lord.

MR JUSTICE RICHARDS: Yes.

MR GILL: My Lord, obviously, I can say nothing about that, save that I wonder whether it is worth really making an order in those terms at all, bearing in mind the nature of the case. It may be that there ought to be no order.

MR JUSTICE RICHARDS: I well see that it is highly unlikely to have any practical utility to make an order in those terms, but I think in the circumstances, the Secretary of State is entitled to the order and I will make it in the terms sought.

MR GILL: My Lord, there is an application for permission to appeal.

MR JUSTICE RICHARDS: Yes. You need detailed assessment --

MR GILL: My Lord, yes.

MR JUSTICE RICHARDS: -- for CLS funding.

MR GILL: My Lord, yes. I am grateful.

MR JUSTICE RICHARDS: As to permission to appeal, you will have seen from the terms of the judgment, towards the end, that I expressed a degree of hesitation about the result. Subject to Mr Burnett seeking to persuade me to the contrary, I am currently minded to grant you permission to appeal.

It is on the internal flight issue in particular. It seems to me that there is a real prospect of success, or I cannot say that there is not. I would not be intending to limit the grant of appeal. It would be for you to consider which points were sensibly pursued in the Court of Appeal.

MR GILL: My Lord, I am grateful.

MR JUSTICE RICHARDS: Mr Burnett.

MR BURNETT: Your Lordship has given a very clear indication. In those circumstances, it would seem inappropriate for me to waste your Lordship's and others' time.

MR JUSTICE RICHARDS: It would be very difficult for you to dissuade me in circumstances where I have expressed the views that I have in the judgment and formed the provisional view.

MR BURNETT: My Lord, in those circumstances, although we do not consent to your Lordship's granting permission, I will take no more time up with it.

MR JUSTICE RICHARDS: Thank you very much.

MR BURNETT: My Lord, there is one further matter to mention; that is, as your Lordship knows, there are a number of cases that have been held up pending your Lordship's determination of this case.

MR JUSTICE RICHARDS: Yes.

MR BURNETT: My Lord, I have a list which indicates that there are 18 at least and --

MR JUSTICE RICHARDS: I am surprised it is not much more than that.

MR BURNETT: I say "at least" because, my Lord, there is certainly the possibility that there might be more. My Lord, it might be helpful if those who instruct me were to provide what they consider to be the definitive list to the Administrative Court office so that such steps as might need to be taken in those cases administratively can be taken. Given your Lordship's grant of permission to appeal, plainly nothing precipitate is going to happen, but it would, it seems to me, be useful for a definitive list to be drawn up.

MR JUSTICE RICHARDS: Yes, that would be extremely helpful. I can see that what is to be done in relation to those cases needs to be done by direction of the court.

MR BURNETT: Yes.

MR JUSTICE RICHARDS: In relation to cases that I directed should await the outcome of this hearing, the point was made on behalf of the Secretary of State, and understandably and properly made, that it is difficult for the Secretary of State simply to agree that cases are to be adjourned to await the outcome of a decision of the Court of Appeal because it could give rise to creation of a legitimate expectation.

In those circumstances, I think that, in the ordinary course, unless the Secretary of State wishes to simply consent to adjournments, the court will have to make directions as appropriate.

MR BURNETT: My Lord, that certainly would be the course that the Secretary of State would suggest should be followed. The starting point must be an attempt to identify the cases that are affected by this judgment.

MR JUSTICE RICHARDS: I had thought, as I say, that there would be more. But even if it is that number, it highlights the importance of an expeditious hearing of the appeal.

MR BURNETT: Yes, my Lord.

MR JUSTICE RICHARDS: I will ensure that the Administrative Court office is aware of my views on that and that it gets passed through to the Civil Appeals office.

MR BURNETT: Yes, I am grateful, my Lord.

MR JUSTICE RICHARDS: Thank you.

MR BURNETT: Thank you.

MR GILL: Thank you, my Lord.

MR JUSTICE RICHARDS: Thank you all very much.