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Mohammed & Ors v Secretary of State for the Home Department [2002] EWHC 57 (Admin) (24th January, 2002)

		Neutral Citation Number: [200] EWHC 57 (Admin)
		PRIVATE

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)

Royal Courts of Justice
Strand
London WC2

24 January 2002

B e f o r e :

MR JUSTICE TURNER
____________________

MOHAMMED

MONAHRAN

SAKHEE

YOGARAJAH

-v-

SECRETARY OF STATE FOR THE HOME DEPARTMENT

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR A NICOL QC & MR M HENDERSON (instructed by Howe & Co) for the 1st applicant
MR C WILLIAMS & MR D O'CALLAGHAN (instructed by M K Sri) for the 2nd applicant
MR W MCGIVERN & MR M O'CONNOR (instructed by White Ryland) for the 3rd applicant
MR D O'CALLAGHAN (instructed by Cranbrook's) for the 4th applicant
MR J HOWELL QC & MISS L GIOVANETTI (instructed by the Treasury Solicitor) for the defendant
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Mr Justice Turner:

Introduction

These conjoined applications raise one point in common and others discrete to the individual cases. The point in common arises out Parts I and IV of the Immigration and Asylum Act 1999 (the Act) in general, and the effect of sections 11, 65, 71 and 72 of the same Act, in particular. All claimants have sought asylum in the United Kingdom on grounds available to them under Article 1(2) of the Geneva Convention, as amended by the first Protocol of the Convention of 1967. The claimants object to refoulement, they rely on the provisions of Article 33.1 of the Geneva Convention In each case the Secretary of State had referred the claimant to the German authorities for adjudication of his or her claim to asylum under the provisions of the Dublin Convention or, to give it its full title, The Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Union. The Secretary of State has also, in each case certified that the claimant’s allegation that a person has acted in breach of his or her human rights is manifestly unfounded so, effectively, depriving him or her of a right of appeal under the provisions of s72(2)(a) of the Act.

The essential case of the Secretary of State is that the provisions of the Act, now in question, were intended to facilitate the rapid processing of asylum claims made in the United Kingdom by the simple expedient of the combined effects of the Dublin Convention and, in particular, section 11 of the Act by referring eligible claims to the Member State which had the responsibility for controlling the entry of that asylum seeker (Article 7.1) into the territory of the Member States or the first Member State with which the application for asylum was lodged (Article 8).

The general challenge to this approach by the Secretary of State was to the efficacy of section 11(1) of the Act as a means of ousting the right of challenge to the deemed finding of the Secretary of State under that sub-section that Germany (in these cases) was to be regarded as a place where the asylum seeker would be safe.

Challenges were variously made by the claimants to the decisions of the Secretary of State that the claims that their human rights would not be threatened were “manifestly unfounded” were wrong and that they had valuable rights under the provisions of Articles 2 and 8 of the European Convention on Human Rights (ECHR).

The case and statutory framework

A convenient starting point is to be found in the cases of Regina v. Secretary of State for the Home Department ex parte Adan and Aitseguer 2001 2 AC 477. There it was held by a majority that

The only true and autonomous interpretation to be ascribed to article 1A(2) of the [Geneva] Convention was that its protection extended to asylum seekers who feared persecution by those other than the state in question were unable to protect them, and in interpreting differently article 1A(2) Germany and France were countries who acted “otherwise than in accordance with the Convention” for the purposes of section 2(2)(c) of the 1996 Act; that since there was a strong probability that the applicant’s 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 countries to which applicants could be lawfully returned under section 2 of the 1996 Act.

See the holding in the headnote. The effect of the Act, which was not in force at the time when this decision was made, was summarised in general terms by Lord Steyn in the following terms at p513:

Section 169(3) of and Schedule 16 to (the Act) 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 a member state will contravene section 6 of the Human Rights Act 1968: sections 11(2) and 65. The Secretary of State can then carry out the removal before the right of appeal is exercised if he certifies that the allegation that removal would breach the asylum seeker’s human rights is manifestly unfounded; sections 11(34) and, 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.

From this it may confidently be inferred that Lord Steyn had not envisaged the possibility that section 11 did not represent the prospective statutory repeal of the effect of the decision in the case then before the House of Lords. That he did not have that foresight does not mean that his understanding was wrong, it may mean no more than that he had not heard submissions of the quality of those made in support of the claimants in the course of the present hearing. For the principal submission made on behalf of all applicants in the present series of cases was, in the simplest of terms, that it had to be accepted that the Secretary of State had a discretion whether or not to invoke the provisions of the section 11 at all. Before the section could lawfully be invoked, it followed that the Secretary of State had to satisfy himself that the Member State which had accepted the responsibility for the claimant’s asylum claim was one which would respect the Refugee Convention, as the House of Lords had held in Adan and Aitseguer. Since the Secretary of State knew that Germany would not so respect the Convention, the exercise of that discretion was subject to review by this Court. The proper exercise of that discretion would not have led the Secretary of State to conclude that it was a case in which he should issue the certificate.

The relevant statutory provisions must now be set out. The Act provides:

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 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 State to which he is to be sent;

(b) the certificate has not been set aside on 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 the appeal has expired.

The phrase “standing arrangements” is defined so as to include the Dublin Convention. Section 12 then defines the procedures which will apply if the removal is to be either to a member state which is not part of the standing arrangements or a designated non-member state.

Then it is provided by section 15 that a person may not be removed from or required to leave the United Kingdom between the time when he makes a claim for asylum and before the Secretary of State had notified his decision on the claim; it does not, however, prevent directions for removal or the making of a deportation order being made during that period, but if made they are not to have effect during that period. Then it is provided by section

65(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 the decision … .

(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 1968.

Other provisions in the section require an adjudicator or the Immigration Appeal Tribunal to consider whether any such decision has been taken in breach of a person’s human rights and is given power to allow an appeal on that ground.

Provisions which are of crucial importance to the outcome of these cases are then to be found in sections 71 and 72. Thus

71(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.

72(1) Unless a certificate issued under section 11 or 12 has been set aside on appeal or under section 65 or 71 or otherwise ceases to have effect, the person in respect of whom it 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.

(3)

Additionally to the above, it is only necessary to note that Part III of Schedule 4 to the Act makes provision for appeals, including those under section 65, to be full merit based appeals, that is both on fact and law and not, therefore, to be equated with judicial review.

The Dublin Convention: This provides for member states of the European Union to undertake the examination of any alien who applies for asylum according to the criteria set out in Articles 4 to 8 in accordance with its national laws. But this requirement is without prejudice to the right of any State, if it so chooses, to examine any such application, provided only that the applicant agrees to that happening; Article 3.4. The otherwise responsible State is in such a case relieved of its obligation to examine that application. Then it is provided by Article 4

Where the applicant for asylum has a member of his family who has been recognised as having refugee status within the meaning of the Geneva Convention, as amended … , in a member state and is legally resident there, that state shall be responsible for examining the application, provided that the persons concerned so desire.

The family member in question may not be other than the spouse of the applicant … or his or her unmarried child who is a minor of under the age of eighteen years, or his or her father or mother where the applicant … is himself or herself an unmarried child who is a minor of under eighteen years.

The operative parts of the Convention, so far as relevant for present purposes are to be found in Articles 10 and 11. Thus

10.1 The member state responsible for examining an application for asylum according to the criteria set out in this Convention shall be obliged to –

* * * * *

(e) Take back under the conditions laid down … an alien whose application it has rejected and who is illegally in another member state.

11.1 If a member state with which an application for asylum has been lodged considers that another member state is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged call upon the other member state to take charge of the applicant.

The individual cases

HOMAYEN AHADI. He is an Afghan national who arrived in Germany on 13 November 2000. There he applied for asylum. Before his claim was processed, however, he arrived in the United Kingdom and claimed asylum. He was interviewed and gave an account of having been beaten by the Taliban and accused of being a communist. On 15 February 2001 Germany accepted responsibility under the Dublin Convention for the claimant’s asylum application. On 21 February the claimant’s claim to asylum in the United Kingdom was refused on third country grounds and the defendant issued a certificate under s11(2)(A) of the Act. On 7 March the claimant’s solicitors made representations to the defendant why he should not be returned to Germany and raised the claim that he would not be accorded protection from breaches of his human rights since Germany would not entertain his claim as there was no recognised government in Afghanistan. By way of reply, the defendant informed the claimant’s solicitors on 13 March that Germany had accepted responsibility for consideration of the claimant’s asylum claim. The letter went on to state:

You state that the cases of “Adan” and “Aitseguer” should preclude the removal of (the claimant) to Germany and that such a removal would be in breach of Article 8 of the European Convention of Human Rights.

The Secretary of State has concluded that this allegation is manifestly unfounded for the reasons set out below.

The Secretary of State has considered whether the authorities in Germany would return the appellant to Afghanistan in breach of his human rights in the light of section 11(2) [sic*]of the (Act), which came into force on 2 October 2000, and which states ….

The Secretary of State routinely and closely monitors the practice and procedures of Member State including Germany in the implementation of the ECHR in order to be satisfied that is obligations are fulfilled. He is satisfied that the appellant will be able to raise any continuing protection concerns that he may have under the provisions of the ECHR with the authorities in Germany and that he would not be subjected to inhuman or degrading treatment or punishment if removed there.

[*The reference above to section 11(2) was plainly a typographical error for section 11(1)]. The letter went on to consider the claimant’s particular family ties and concluded that they were insufficiently significant to engage Article 8. In evidence filed on behalf of the Secretary of State, it was said that under Article 53(4) of the Aliens Act [German] a person is guaranteed protection from deportation if there is a real risk that the applicant would face treatment attributable to the state, which would be contrary to Article 3 of the ECHR. Where the treatment was asserted to be that of a third party, protection was available under Article 53(6) of the same Act. Reference was also made to the case of TI v. UK [2000] INLR 211; see later in this judgment. [This evidence also dealt with the alleged breach of Article 8 of the ECHR, in terms that need not detain the reader at this stage].

The challenges made by the claimant are that the Secretary of State has misunderstood or misapplied section 11 of the Act. Further his certification of the claimant’s claims in respect of breaches of Articles 3 and 8 of the ECHR as “manifestly unfounded” were irrational and unlawful.

PETHURU MANOHARAN The claimant is of Sri Lankan origin. He entered Germany on 30 Apr 2000 and claimed asylum. He arrived in the United Kingdom on 12 November 2000 and also claimed asylum. The basis of his claim was fear of persecution by the Sri Lankan Army and the LTTE. On 31 May 2001, the claim for asylum was certified on third country grounds under section 11 of the Act, a certificate to that effect was served upon him on 15 June. On the same date the claimant applied for and was refused protection under the ECHR, the Secretary of State certified that this claim was “manifestly unfounded”

The challenges were essentially the same as in the case of Ahadi, above.

FAWZIA SAKHEE The claimant is of Afghanistan origin, having been born in 1971. She is married and has four children aged 9, 8, 5 and nearly 2 years. She entered Germany at some uncertain date in 1995 where, she asserts that, she claimed asylum. At some date prior to June 1998 her asylum claim was rejected. She appealed but was unsuccessful. In February 1999, the claimant asserts that she was advised to withdraw her asylum claim and was granted status as gast by the German Authorities. The claimant now asserts that some time in 2000 she was beaten by her husband as the result of which she was treated in hospital and she started to live apart from him. Some time in the same year the claimant travelled to Pakistan with the assistance of financial aid from her husband’s family. She returned from Pakistan in about May of the same year but did not resume cohabitation with her husband. In September/October of the same year, the claimant travelled by lorry through France to the United Kingdom where she claimed asylum on arrival. The Home Office requested Germany to accept responsibility for processing the claimant’s asylum claim, which the authorities there accepted on 28 February 2001. On 6 March the SSHD refused the claim on third country grounds and relied on section 11 of the Act declaring that she was returnable to Germany as a safe third country under the provisions of section 11(2)a).

In due course the claimant was served with directions for the removal of herself and her children to Germany. This provoked a letter from her solicitors which raised Human Rights issues. At the same time, the claimant’s solicitors submitted a new statement from her in which she described the uncertainty, and from her view point, unsatisfactory nature, of the asylum procedures in Germany. It is a feature of that statement that the claimant was portraying herself as a member of a united family. She described how, in order to avoid the strain which the situation created, she and her children had flown to Pakistan in April 2000 for the purpose of visiting friends for what could only have been a few days. Because of increasing concerns and uncertainty about the situation of the family in Germany and the deteriorating situation in Afghanistan the claimant decided that she and her children would travel to the United Kingdom. The statement includes the passage

Zakria [her husband] and I felt we owed it to the children to try and provide them with a secure and stable future. This was simply impossible in Germany. For personal reasons, however, we decided that Zakria would remain in Germany until we had all settled down in the UK.

The statement then lists a number of family members who were already in the United Kingdom. The statement also revealed that the claimant had not been truthful in her original statement about the route by which she had reached the United Kingdom as well as certain dates and events mentioned in it.

On 23 June 2001 the Secretary of State rejected the Human Rights claim and certified that it was manifestly unfounded. The bases of the certificate were 1. The Dublin Convention, 2. Germany would not return the claimant to Afghanistan in breach of her Human Rights since Germany is a signatory to the Geneva Convention and 3. That the claimant could raise any protection concerns with Germany which would not return her otherwise than in accordance with the Convention. Removal directions were re-set. This prompted further representations from the claimant’s solicitors and a further statement. In it, the claimant provided an account which explained that her husband had become mentally ill with the consequence that he started to assault both her and their children. She was hospitalised as the result of one of those assaults. The family separated and the husband was not permitted to see his family. Relatives of the claimant’s husband provided the money for the trip to Pakistan, which had been described in the second statement. Despite this, the claimant had said, see paragraph 19 of her second statement, that she was virtually a single parent with no support from anyone. In rejecting this latest attempt to prevent her return to Germany, the Secretary of State wrote

The Secretary of State has also given careful consideration to the claim that to remove your client and her children to Germany without substantive consideration of her asylum claim would place the United Kingdom in breach of its obligations under Article 8 of the ECHR. While it may be the case that your client has been able to enjoy closer contact with her mother, siblings and other relatives during the time of her stay in the United Kingdom, it is not accepted by the Secretary of State that the attachment between your client and her relatives is sufficiently close and well established to constitute family life under Article 8(1) of the ECHR. Furthermore even were such an attachment to constitute family life … the Secretary of State considers that the interference with that family life which will result from your client’s removal to Germany is justifiable in all the circumstances of the case..

ANANDARAJAH YOGARAJAH He is Sri Lankan by birth. He travelled to Germany where he arrived on 19 December 1995 and claimed asylum two days later. The claim was refused on 11 November 1999. About a month later, the claimant left Germany and arrived in the United Kingdom on 16 January 2000 where he claimed asylum. In the meantime his wife and children had arrived here on 2 January. In his case, the Secretary of State certified that the claim that the claimant’s return to Germany would breach his Human Rights under Articles 2, 3, 5, 6 and 14 was manifestly unfounded. The Secretary of State had also certified that the claimant’s asylum claim fell to be considered by Germany under the provisions of section 11 of the Act.

The scheme of the Act

Section 11 is expressly concerned with asylum seekers who are subject to return to a Member State with whom the United Kingdom has standing arrangements under the provisions of the Dublin Convention. Section 15 preserves, or establishes, an applicant’s right not to be removed from the United Kingdom before the Secretary of State has given notice of his decision on the claim. However section 11(2) of the Act provides, in a case in which the Secretary of State has certified that the Member State is the “responsible State” and that the applicant is not a citizen of that State, that section 15 is not a bar to that person’s removal. Section 11 also provides that unless a certificate has been issued under section 72(2)(a), certifying that any human rights claim is manifestly unfounded, the claimant is not to be removed until his section 65 appeal has been determined. Such an appeal is available to a person who claims that any decision taken by the Secretary of State under the Immigration Acts would breach his human rights. As has been seen already, if the Secretary of State certifies that any human rights claim is unfounded, the claimant may only appeal when out of country. Section 71 of the Act affords limited grounds to a claimant to appeal on the grounds that the conditions in section 11 ((a)(i) standing arrangements and (ii) citizen of the country to which he is to be sent). Section 72 prevents the claimant from exercising his rights of appeal while in the United Kingdom whether under sections 65 or 71.

Section 12 of the Act provides a series of parallel provisions to section 11 in respect of claimants who are to be returned to Member State where there are no standing arrangements under the Dublin Convention or to a state designated by order of the Secretary of State where the conditions set out in subsection (7) are satisfied.

The broad legislative purpose of the sections under present consideration was, in part at least, to enable the Secretary of State in any case where he thought it right to invoke the powers conferred to remove an asylum applicant where his asylum claim would be considered by a Member State, and where he considered and certified, would be a decision which would not be in breach of the claimant’s Human Rights. Otherwise, the Secretary of State would be in substantially the position in which he was held to have occupied in Adan and Aitseguer, that is to say unable to take advantage of the Dublin convention in any case where different standards of protection existed in the country to which he wished to return an applicant for consideration of his asylum claim from those which exist in the United Kingdom.

The principal point

In his submissions, counsel for the lead claimant posed three main questions for the court. These, slightly reformulated, were

Does section 11(1) of the Act mean that the Secretary of State was precluded from finding that Germany was a place from which the claimant might be sent to another country otherwise than in accordance with the Convention?

Does that section preclude the court from considering the claim that it was unlawful to issue a certificate under the subsection in relation to the claim under the Convention?

In coming to his decision did the Secretary of State act unlawfully?

These questions will be considered in turn.

The submission was that the Secretary of State is not precluded from finding that Germany is other than a safe country in every case. That he has some discretion is exemplified by the decision in Ayman Ibrahim [2001]EWCA Civ 519 [2001] Imm AR 430, as to which see further below. The short point was that, if the Secretary of State can decide whether or not to exercise his powers under section 11 there must be an opportunity for him to consider whether he will do so or not. The premise is that the Secretary of State has a discretion whether to implement the section or not. Accordingly, it is open to a claimant to question the basis upon which that discretion is exercised. In other words, the issue is whether the discretion to invoke the section is entirely open or is circumscribed by those considerations, among others, which produced the outcome in Adan and Aitseguer. It was the submission that it would be a strange outcome if the one basis upon which the Secretary of State was unable to exercise his discretion was if, on the evidence available to him, Germany was not in fact a safe country.

20. Ibrahim (above) was cited, if only to lay the ground for submitting that it had either been wrongly decided or that this court was not obliged to follow it. Ibrahim was a case which went to the Court of Appeal on an application for permission to appeal against the refusal of permission to bring proceedings for judicial review of the decision of the Secretary of State. In the holdings it is recited that since the applicant had never claimed persecution by non-state agents prior to that application, Adan was irrelevant. However, it was sought to argue in the Court of Appeal that the decision of the Secretary of State that France was a safe country was in conflict with the decision in Adan. At paragraph 15 of his judgment, Simon Brown LJ said

I come 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.

The proposition was that if section 11 did not effectively prevent the Secretary of State from considering the actual conditions in the Member State, then its purpose was to seek to oust the jurisdiction of the courts to consider the legality of the decision of the Secretary of State. Reliance was placed on the observation of Simon Brown LJ in the last sentence quoted from the judgment in Ibrahim above. This raised an interesting point in relation to the citation and the binding nature of previous judicial authority. The judgment in Ibrahim, as already noted was given on an application for permission to appeal the refusal of permission to bring proceedings for judicial review. Under the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 paragraph 6, a judgment on applications for permission to appeal “may not be cited unless it clearly indicates that it purports to establish a new principle or to extend the present law”. After the date of the Direction, there has to be an express statement to that effect, if a judgment is to be cited. As it so happens, the Practice Statement was made on 9 April, whereas the decision in Ibrahim was given on 2 March 2001.

In these circumstances, counsel for the claimants submitted that Ibrahim was not binding authority on the court, in the present case. He also relied on observations of Peter Gibson LJ in Secretary of State for the Home Department v. Senkoy [2001] ImmAR 399 where, at paragraph 25 (p407), he said

(T)his was a renewed application for leave to move for judicial review, and judgments given on such applications are not binding and should normally not be cited (cf Clark v. University of Lincolnshire [2000] 3 AllER 752 at 762).

In the bracketed case of Clark, above Lord Woolf had said (paragraph 43)

The court therefore does not have to follow these decisions given on applications for permission to appeal. They are at best only of persuasive weight. The court does not encourage reference to judgments given on applications for permission. However, if a court is prepared to be referred to such judgments, it should be clearly understood that they are not binding.

It is not unreasonable to conclude that Clark was the spur to the decision to issue the Practice Direction above.

It does, however, have to be recognised that Ibrahim had an interesting and potentially significant history. It had originally gone before Brooke LJ as an application. He referred it to the Court of Appeal, commenting that

The full court should have the opportunity of deciding whether it is properly arguable that anything in the decision in 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 … .

Thus, although it was an application which the Court of Appeal was considering in Ibrahim it was an application ‘with a difference’. Not only that, but it may be seen that the Court was of, what may respectfully be termed, a ‘strong’ composition. On the other hand as was pointed out in the course of the present submissions, there was a strong possibility that it had not been argued in the depth to which the court was now exposed.

On the basis, therefore, that if, on its proper construction, section 11 was intended to oust the jurisdiction of the court, then the court should approach it with particular scepticism because of the obvious Human Rights’ implications. It was the claimant’s submission that section 11 could be read so that it did not have the effect of ousting the court’s jurisdiction. Such a result would be achieved if its operation was limited to the situation after a lawful certificate under section 11(2) has been given. On this analysis, section 11(1) only becomes operative after the issue of the certificate and the problem of ouster is thus avoided. Attention was drawn to the contrasting provisions of sections 11 and 12 of the Act. Section 11 does not require the Secretary of State to certify the safety of the third country, whereas section 12(2) and (7) does. Under section 12, the claimant has a right of appeal under section 65 (above), whereas under section 11 he does not. So it was submitted that it would be no answer for the Secretary of State to argue that if Parliament had intended the safety of the third country to be a relevant factor for the purposes of section 11 it would have so provided.

It was further submitted that the Dublin Convention only became engaged when one Member State has requested another State to accept the asylum seeker’s application for asylum. Logically, therefore, it was argued that the requesting State must already have decided in principle that it wished to remove the asylum claimant, but would be met by the bar on removal imposed by section 15 of the Act. Consequently at the time when the decision letter is sent, the Secretary of State must be contemplating removal. It is at that point when the Secretary of State must exercise his discretion which, to be a valid exercise of his power, will involve him in having to consider whether or not Germany is in fact a safe third country. To the extent that he did and came to the conclusion that it was, he was plainly in error. To the extent that he did not exercise any discretion, he was in error of law and his decision would stand to be quashed on this alternative basis.

If, as the terms of the decision letter issued in this case indicate, the Secretary of State had considered the question whether or not Germany was indeed a safe country and had come to the conclusion that it was, then given what was known about Germany’s attitude to the interpretation of the Convention (in relation to persecution by non-state agents), he must have misdirected himself. If he had not considered the question at all, he was equally in error.

The submissions which the Government of the United Kingdom had made in the case before the Strasbourg court on this issue were rejected by that court in the case of TI v. United Kingdom [2000] INLR 211, where in terms at p227 H where it said

The Court reiterates in the first place that Contracting States have the right as a matter of well-established international law and subject to their Treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the right to political asylum is not contained in either the Convention or its protocols … . It is however well established in its case law that the fundamentally important prohibition against torture and inhuman and degrading treatment under Article 3, read in conjunction with Article 1 of the convention ‘to secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, imposes an obligation on contracting States not to expel a person to a country where substantial grounds have been shown for believing that he would face a real risk of being subject to treatment contrary to Article 3 … .

The Court’s case law further indicates that the existence of this obligation is to dependent on whether the source of the risk of treatment stems from factors which involve responsibility, direct, or indirect, of the authorities of the receiving country. Having regard to the absolute character of the right guaranteed, Article 3 may extend even to situations where the danger emanates from persons or groups of persons who are not public officials.

The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the UK to ensure that the applicant is not, as a result of the decision to expel, exposed to treatment contrary to Article 3 … . Nor can the UK rely automatically in that context on the arrangements in the Dublin Convention concerning the attribution of responsibility between European Countries for deciding asylum claims. …. The court notes the comments of the UNHCR that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined by the differing approaches adopted by contracting States to the scope of the protection afforded. The English courts themselves have shown a similar concern in reviewing decisions of the Secretary of State concerning the removal of asylum seekers to allegedly safe third countries.

The Court’s judgment went on to consider the position of Tamil asylum seekers in Germany and continued at p230 H

None the less, the Court notes that the apparent gap in protection resulting from the German approach to non-state agents risk is met, to some extent [231] by the application by the German authorities of s 53(6) {of the Aliens Act). It appears that this provision has been applied to give protection to persons facing risk to life and limb 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 …. . The applicant has emphasised the discretionary nature of this provision. The German Government, while accepting that it is phrased in discretionary terms, submit 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 …. The Federal Administrative Court considers that cases which involve a serious risk to life and personal integrity should be re-examined.

… There is … no basis on which the Court could assume that Germany would fail to fulfil its obligations under Article 3 of the Convention to provide the applicant with protection against removal to Sri Lanka if he put forward substantial grounds that he faces risks of torture and ill-treatment in that country. To the extent therefore that there is a possibility of such removal, it has not been shown in the circumstances of this case that it is sufficiently concrete or determinate.

Finally, as regards the applicant’s arguments, concerning the high burden of proof placed on asylum seekers in Germany, the Court is not persuaded that this has been substantiated as preventing meritorious claims in practice. It notes that this matter has been considered by the English Court of Appeal and rejected. The record of Germany granting large numbers of asylum claims gives an indication that the threshold being applied is not excessively high.

It was submitted that despite the decision of the Strasbourg Court in TI (above) there was no evidence before the Secretary of State, or this court, how the German authorities would apply Article 53(6) to the removal of an Afghani national where the dominant force was not a government recognised by Germany. The court should be cautious before it applied principles decided in the context of other countries to cases which might involve return, as here, to countries where the position was at best uncertain. Reference was made to The Queen on the applications of Yogathas and Thangarasa and the Secretary of State for the Home Department [2001] EWCA Civ 1611 paragraph 61, in support of this proposition.

The subsidiary points

Two subsidiary question were posed.

When determining, as he did, that the applicant’s claim under Article 3 of the ECHR was manifestly unfounded was the Secretary of State entitled or bound to rely on the section 11(1) statement? The main submission here was that the statement in section 11(1)(b) that “a Member State is to be regarded as” … “a place from which a person will not be sent … otherwise than in accordance with the Refugee Convention” cannot be conclusive or material in relation to the question whether such removal would be contrary to his rights under ECHR was manifestly unfounded for, if it were, a person might be removed when there was a real risk that his Article 3 rights would not be respected. Such a matter was not for Parliament which had passed the legislation, but was a practical one for consideration by the Executive, the appellate system or the courts. After reference to the observations of Lord Steyn in R v. A (No 2) [2001] 2 WLR 1546, it was submitted that the effect of section 3(1) of the Human Rights Act 1968 was to require the court to interpret section 11(1) of the Act of 1999 so that it could only be held to apply to a person, who was facing removal as an asylum seeker, and not to the position if he alternately claimed that his removal would breach his rights under the ECHR. The language of section 11 is plainly referable to the provisions of Article 1A of the Refugee Convention and not to any Article in the ECHR. Indeed section 167 of the Act, which defines “a claim for asylum”, words which also appear in section 11, as meaning a claim which it would be contrary to the UK's obligations under the Refugee Convention if the person making the claim were to be removed from this country.

Thus, it was contended that the Secretary of State was neither obliged nor entitled to rely on his decision under section 11 to certify under section 72 that the claimant’s rights under Article 3 would not be infringed.

The submission was that the decision of the Secretary of State to certify the claimant’s case that his return to Germany would infringe his human rights was manifestly unarguable was irrational. The basis of this challenge was twofold. If the challenge in 4. above, succeeds then that is conclusive. Secondly the test for determining whether or not the claim was manifestly unfounded, [per Collins J in Thangarasa, is for the claim to have “no chance whatever of succeeding”; per Laws LJ in the same case in the Court of Appeal, is that “there is plainly nothing of substance in the case”]. It was also pointed out that in the evidence filed on behalf of the Secretary of State he had in part based his decision on the proposition that to the extent to which there was available to the claimant fresh information to support the previously made, but abandoned, claim in Germany it would be open to the claimant to represent her claim for asylum there. Since it was not clear that the claimant would be in a position to show that she had relevant fresh material, it was palpably wrong for the Secretary of State to have based his decision on such uncertain material.

Finally, it was submitted that the claimant had a valid claim to the effect that if he were to be returned to Germany his Article 8 rights would be infringed as he had three siblings who were present in the United Kingdom, one of whom had been granted exceptional leave to remain and who had all suffered mental trauma in the process of fleeing from Afghanistan. It was their presence here which meant that the Secretary of State could not possibly overcome the high threshold of demonstrating that the claim either had “no chance of success” or there was “plainly nothing of substance in it”. All three members of the family were enjoying the benefits of mutual support after their escape from Afghanistan. The decision conveyed in the letter of 13 March 2001 could not be justified. In any event, the interference with family life had to be proportionate, if they were to be upheld.

The second claimant

In addition to the arguments made on behalf of the first claimant, which he adopted, it was submitted that the Secretary of State was not entitled to rely on section 53(6) of the Aliens Act (above) as found by the Strasbourg court in TI when exercising his powers under section 11 of the Act. The submission was that the finding in TI was no more than a finding of fact by the Strasbourg Court in that particular case and was not binding on the Secretary of State in other cases; see observations of Laws LJ in paragraph 65 of Thangarasa (above).

Next, it was submitted that the Secretary of State was neither bound by, nor entitled to rely on, the assurances given by the German government in TI that it would scrupulously comply with the request by the Strasbourg Court, that it should suspend deportation while an application was made to that Court on behalf of the claimant in which a claim was advanced that there was a breach of the claimant’s Article 3 rights. When assessing the existence of the risk of refoulement by a third country, contrary to the obligations under the Refugee convention, it was incumbent on the Secretary of State to consider whether the assurances given by the German government in TI were specific to that case or applied generally. In failing to establish which of these was correct, before he made his decision in the present case, the Secretary of State had acted irrationally.

As to the question of the alleged illegality of the decision of the Secretary of State to certify the claim as manifestly unfounded, it was submitted that there was a positive duty on the Secretary of State to investigate conditions in the third country and not merely to rely upon assurances emanating from that country; see by analogy Wright v. SSHD [2001] EXHC per Jackson J at paragraph 43. The Secretary of State should have been aware that it is arguable that section 53(6) of the Aliens Act does not afford the same degree of protection as Article 3 of the ECHR.

Reliance was also placed on factual differences between TI and the present case, in that in TI, the claimant had been outside Germany for a period of more than two years whereas the claimant in the instant case had been outside Germany for a period less than two years. The relevance of this feature was explained by reference to evidence from an expert in German law submitted on behalf of the claimant, although it had originally been before the court in Thangarasa. The position of asylum seekers who return to Germany within two years of deportation is said to be that any further claim to asylum will only be considered if there is fresh evidence to support it. Otherwise, a new deportation order will be issued which engages a fast track procedure; a right of appeal with suspensive effect is not available. In other words deportation may take place before the appeal is heard by the German authorities. Accordingly, the consequences for this claimant may be that, in the absence of fresh evidence, the protection gap between the Refugee Convention and Article 3 becomes effective and the ability of the claimant to access the Strasbourg Court would be illusory. The same position applies if it is not known whether a deportation order has been made or not. The Secretary of State is not entitled to assume that such had not been made. For if it had, the claimant would not be able to access the Aliens Act and he would fall through the protection gap and without access to suspensive rights of appeal before deportation. For the Secretary of State to have ordered the claimant’s return to Germany when he did not know the true factual position was irrational or otherwise unlawful. No certification should have been made. The test established in R v. Secretary of State for the Home Department ex parte Canoblat [1997] INLR 198 “whether there was a real risk that the asylum seeker would be sent to another country or territory otherwise than in accordance with the Convention” was the appropriate test.

The third claimant

The submissions of the first claimant on the principal issue were adopted. There was a challenge to the decision of the Secretary of State that neither the claimant nor her children had established a family life in the United Kingdom. Accordingly there was a challenge under the provisions of Article 8 and to the inherent proposition that the interference with such family life could be justified as proportionate to the need to retain a fair immigration policy.

The fourth claimant

There were no fresh submissions made on his behalf that had not already been made on behalf of the first and second claimants.

The Secretary of State for the Home Department

In summary, the position of the Secretary of State is: that by virtue of section 11(1) of the Act, Germany must be regarded as a safe third country and there exist no substantial grounds for believing that any of the claimants, if returned to Germany, would be removed from there in breach of Article 3 of the ECHR and that the suggestion that removal to Germany would imperil their rights under that Convention is manifestly unfounded. The submissions made in respect of Article 8 are untenable on the facts of the individual cases.

This overall submission is underscored by the provisions of Article 33.1 of the Refugee Convention which forbids contracting States from expelling a refugee to any country where his life or freedom would be threatened for a Convention reason. It was because of the fact that Germany subscribes to the ‘accountability’ theory of persecution that the claimants in Adan and Aitseguer were successful. However, it was submitted that the mere fact that a State may apply the theory of accountability does not of necessity involve a breach of Article 33.1 of the Refugee Convention if a claimant were to be returned to such a State. One reason may be that application of the ECHR will provide protection at least as great as under the Refugee Convention itself. The reasons why this should be so can be garnered from the decision in Yogathas (above) at paragraphs 20-24, 29 and 45. The essence of this submission is that the question for the Secretary of State is the practical one whether the government of the third country would send the applicant to another country otherwise than in accordance with the terms of the Convention.

The submission in relation to the true effect of section 11 was that a Member State is deemed to be a safe third country to which a person, in respect of whom a certificate has been issued, may be sent in respect of whom a certificate has been issued whether or not the country is in fact safe. The provisions of the section apply equally to the court as they do to the Secretary of State. In support of this submission the Secretary of State relied on the Scottish case of Abbas Jalloh a decision of Lord Eassie in the Outer House, delivered on 6 November 2001.

The claimants’ arguments proceeded on the premise that the Secretary of State was required to take two decisions sequentially, first the question whether to certify or not, at which stage he should consider the question whether the state was safe or not and, secondly, the decision whether or not to remove the individual, at which stage the question, whether the state was safe, was irrelevant. Both of these premises were unsound. Article 33(1), as has already been noted, is reflected in the language of section 11(1) and thus confirms that, in determining for the purposes of that subsection, whether or not to remove a person, a Member State is to be regarded as ‘safe’.

As to the first of the premises, above, the Secretary of State may in fact certify the two criteria in section 11(2)(a) when they are both satisfied. The validity of the certificate is independent of the view which the Secretary of State may take in regard to the safety of the State in question. There is a noticeable difference between those matters about which the Secretary of State is required to be satisfied when certifying either under section 11 or section 12 of the Act. In the latter section, the Secretary of State is required by subsections (2) and (7) to certify that in his opinion (b) the life and liberty of the person would not be threatened for a Convention reason. By contrast for the purposes of section 11(2), no such opinion is required. Finally, on this aspect, the mere fact of certification does not oblige the Secretary of State to remove the person. The effect of certification is to lift the embargo on removal before the claimant has been notified of the decision on his substantive asylum claim.

If consideration is given to what may be considered to have been the broad legislative intention of Parliament, which was that a person could be removed to a Member State with which there were standing arrangements without the removing state having to consider either the merits of the asylum claim or whether the third country was in fact safe, such a purpose could not properly be characterised as bizarre, as the claimants had urged, since not only are all Member States parties to the ECHR but also to the Refugee Convention.

More cogently, perhaps, it was pointed out that if the claimants’ construction were to be upheld, section 11(1) was deprived of any sensible effect. If the Secretary of State was obliged to come to a decision whether the third country was in fact safe, then there would be little if any scope for section 11(1) to operate at all. Such was the view of the Court of Appeal in Ibrahim (above). In one of the cases which has followed Ibrahim, Scott Baker J held that the meaning of the section was clear and concluded [16]

Henceforth, Member States are deemed to be safe for Convention purposes and they are deemed to be places from which refugees will not be sent elsewhere other than in accordance with the Convention.

And at [23]

I am unable to accept that the Secretary of State’s approach amounts to taking away rights from the claimants. The effect of the deeming provision is to conclude that a particular state of affairs has been established rather than to leave it open to resolution on evidence.

See The Queen on the application of Gashi v Secretary of State [2001] EWHC Admin 622. This case went to the Court of Appeal on an application for permission ([2001] EWCA Civ 1850) but the point on the deeming provision was not raised. It has to be accepted that there is the theoretical protection gap in the application of the law of refugees by Germany in the sense exemplified by Adan. It was submitted that despite this, Article 3 of the ECHR was capable of filling that gap. One of the consequences of section 11 of the Act is that a person whom the Secretary of State has decided to remove has an appeal, but only under the provisions of section 65. This section provides, as has been seen, only a limited ‘human rights’ appeal which is in turn subject to a potential bar if the Secretary of State considers that the human rights claim is manifestly unfounded. The circumstances which can lead the Secretary of State to such a conclusion must be that, on the facts of these cases, Germany would respect the provisions of Article 3 of the ECHR. The extent of German compliance with this Article is thus relevant to the decision which the Secretary of State has to take. It has to be recognised that, in this context, the Secretary of State is the person whose decision is under review. If he is satisfied that there is no substance to the alleged breach of human rights, then he is entitled to issue his certificate, whatever others might or might not conclude. The power of the court to intervene in this process is limited to the well known principles applicable in cases of judicial review.

Submissions were then made in relation to the extent of compliance with ECHR by Germany. It is not required that the Secretary of State should assume that Germany would not honour its Convention obligations any more than another Member State would do likewise. The standard of risk of persecutory conduct has to be ‘real’; see discussion of the cases by Collins J in Secretary of State for the Home Department v. Kajac [2001] 354 at 365 [12].

42. TI (above), when properly understood, was not authority which was of assistance to the claimants. The Strasbourg Court had held that there was no protection gap despite the fact that the German Administrative Court had held that the risk of treatment contrary to Article 3 must emanate from state agents. But the Strasbourg Court went on to hold that protection from deportation might be granted under the provisions of section 53(6) of the Aliens Act and refused to hold that Germany would expel the claimant in breach of Article 3, consequently the complaint against the United Kingdom was manifestly ill-founded. Likewise, Thangarasa (above) was of no assistance to the claimants since the Court of Appeal had upheld the decision of Collins J who had rejected the submission, made also in this case, that the decision in TI was limited to the facts of that case. The passages in the judgment of the Court of Appeal which were germane to this issue were to be found in paragraphs [65] and [66] where Laws LJ said

(Counsel for the claimant) 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) [of the Aliens Act]; 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 (counsel for the defendant)’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 (Strasbourg Court).

Germany would scrupulously comply with any request from the (Strasbourg Court) to suspend any execution of a deportation order. There has never been a report of the German authorities failing to comply with such an indication in the cases of a deportation expulsion or removal.

It is the universal practice of the German courts and Executive to comply with the judgments of the (Strasbourg Court) in proceedings in which Germany is a party.

There has been no case in which the (Strasbourg Court) 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 … . 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 access to, in the last resort, the (Strasbourg Court). 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.

In short the claimants had failed to establish that there was any, let alone a real, risk that if returned to Germany any of them face a prospect that they would be treated otherwise than in accordance with Article 3. It was in these circumstances that the Secretary of State was justified in concluding that Germany was a ‘safe’ country for the purposes of the Refugee convention as well as a country in which the claimants’ Article 3 rights would be respected.

In none of the present cases did Article 8 (respect for family life) enable the claimants to assert that the decision of the Secretary of State involved any threatened breach of this provision. It is a provision which does not purport to, nor does it, provide the basis for any expectation that a claimant will be entitled to enter or remain in any particular country. The test for its engagement in any particular case will, as in many of the cases now before the court, depend on a number of factual circumstances peculiar to the individual claimant. Among the factors which have to be considered is whether the relationship (of close family ties) was established at a time when the immigration status of any of the “family” was precarious. In such a case, it would only be in exceptional circumstances that the Article would be breached if removal were to be effected; see Ayaji v. UK [1999] Application 27663/95. Once again it is a matter for the Secretary of State to determine whether removal should take place or not after seeking to balance the various interests involved. In this context, it is of importance that the Secretary of State has a policy in relation to the obligations which may exist under Article 8 and the reasons which may justify removal despite the existence of those obligations; see letter dated March 1991, in the course of which he had said

(He) would normally consider the substance of a potential third country case where the applicant’s spouse is in the United Kingdom, or where the applicant has an unmarried minor child in the United Kingdom. In all cases ‘in the United Kingdom’ is to be taken as meaning leave to enter or remain or on temporary admission as an asylum seeker.

The Secretary of State may exercise his discretion, according to the merits of the case where a married minor was involved: the applicant was an elderly or otherwise dependent parent or, as in your client’s case, when the family link was not one which would normally be considered but there was clear evidence that the appellant was wholly or mainly dependent on the relative in the United Kingdom and that there was an absence of similar support elsewhere. Cases citing family links which would not normally be considered, such as your client’s case, are not displaying any of the features which engaged the exercise of discretion would not normally be considered substantively.

Collins J in The Queen on the application of Demiroglu v. Secretary of State for the Home Department [2001]EWHC Admin 663 held that

The law in relation to Article 8(2) and immigration has been considered in Strasbourg and, indeed, in this country. It is difficult, to put it no higher, for an Applicant, who otherwise ought to be removed, to rely on Article 8 because of the provisions of Article 8(2). However … in the circumstances of this case … the Secretary of State was perfectly entitled to apply the policy (above). The policy as applied, was manifestly proportionate and, in those circumstances, there is no conceivable prospect that this application could succeed because ther is no conceivable prospect that an appeal to an adjudicator would have any chance of success.

Submissions peculiar to each of the claimants were then made.

AHADI

The basis of the claim is said to be that it was not clear that he would be able to demonstrate a change of circumstances in his favour which would enable him to make a fresh asylum claim in Germany and that, if he could not, then this might lead him to be excluded from the asylum and human rights processes which would otherwise be available to him in Germany. It was not the case that the defendant was saying that the claimants’ asylum application in Germany had been concluded. But, if it had, the Secretary of State was setting out the position which would then confront the claimant viz that it would still be open to him to put material before the German authorities any new and compelling evidence which would bear on the claims either under the Refugee Convention or the ECHR. Moreover, there was no basis for the suggestion that, if returned to Germany, the claimant would be excluded from either regime of succour. Even were that to have been the position, it would still have been open to the claimant to petition the Strasbourg Court for protection of his rights.

In relation to the claim based on the supposed infringement of Article 8, the submission was simply that there was ample material available to the Secretary of State to justify his decision; see summary above. In those circumstances there was no basis upon which the court could properly intervene.

SAKHEE

There is an assertion that the certificate issued under the provisions of section 11 of the Act infringes the claimant’s rights under Article 6 since it deprived her of the right to pursue her claim in the courts. This claim should fail because the decision of the Strasbourg Court in Maaouia v. France Application no. 39652/98 determined that decisions taken in the field of immigration do not involve the determination of the civil rights and obligations of the individual. There is no evidence that if the claimant is returned to Germany she will have lost whatever status she had enjoyed before she left that country and came to the United Kingdom. Consequently there is no reason to suppose that she will be unable to pursue whatever claims for asylum she may wish if she were to be returned to that country.

In support of her claim, based on Article 8, the position is that the claimant has provided a number of statements which are contradictory insofar as her ‘family’ situation is concerned. Again the Secretary of State was entitled to come to the decision on the facts that he did, the substance of which is outlined above.

MANOHARAN

The essence of his claim was that the factual findings in the cases of Thangarasa and Yogathas in the Court of Appeal were not binding on him. The Secretary of State was in error when considering this case in not having given express consideration to the expert legal material which had been placed before the court in Thangarasa. The submission on behalf of the Secretary of State was that that case was binding on the present court and was, in any event, correct.

YOGARAJAH

The submissions were essentially the same as in the case of Manoharan.

Discussion

It is plain that the principal point of importance that these cases raise directly is whether or not the Secretary of State is obliged to consider the existence of a protection gap before certifying under the provisions of section 11(2). There have already been a number of cases in which this matter has received the direct or indirect consideration of the House of Lords, Court of Appeal and courts of first instance. Thus: Adan and Aitseguer, Thangarasa at first instance and in the Court of Appeal, Ibrahim, Abbas Jalloh and Gashi all of which have been noted above. All have arrived at the same conclusion as a matter of simple interpretation of the language of the section as well as the presumed intention of the legislature. As a mark of judicial comity, to put the matter no higher, I am bound to pay serious regard to these decisions. It may be objected that the observations of Lord Steyn in Adan (above) were not necessary to the decision in that case. While this may be true, it is clear that they were not made in any casual sense. In my judgment they should be accorded great persuasive force. They were pronounced on a matter which was close to the actual decision which their Lordships’ House was considering. Ibrahim is directly in point, all that can be said against the authority of that decision is that it was made on an application for permission to appeal and that the court did not expressly advert to the question whether its decision should be taken to establish a new principle. It can be controverted that the Court of Appeal did advert to the reasons why the application for permission had been referred to the court for full argument and that it gave a reasoned judgment. So it may be said that the decision, although not technically binding should be accorded the fullest weight. Abba Jalloh and Gashi are both decisions of first instance which should, accordingly, be followed unless the court was satisfied that they had each been wrongly decided.

Quite apart from these considerations is the central point whether the court should hold that before the Secretary of State can lawfully certify under section 11(2) of the Act he must be satisfied that no protection gap exists in the alleged ‘safe’ country. The answer to this debate is to be found in the language and structure of the Act itself. One of the matters which should be taken into account when performing this exercise is whether the subsection is, as the claimants assert, a disguised ouster clause to which the court should strain to avoid giving effect. The other way of viewing it is as Scott Baker J did in Gashi, namely as a provision which limited the scope for evidential inquiry while not restricting any of the courts other powers.

If the matter has to be considered as a matter of simple construction, there might be thought to be little difficulty. There is, as noted above, an obvious distinction between those matters which the Secretary of State is expressly required to consider for the purposes of section 12 of the Act and those required under section 11. Logically, and in terms of consistency, it makes no sense that, while the Secretary of State is required to form the opinion that the life and liberty of the claimant would not be threatened for Refugee Convention reasons when he is exercising powers under section 12, whereas, when he is performing a similar exercise in circumstances where the intended removal is to a Dublin Convention country, section 11 does not expressly require him to form that opinion, he is nevertheless required so to do implicitly. The court should lean decisively against such a contrived position. As important a consideration, must surely be the reasons underlying the changes to the law introduced by the Act of 1999 in the respects now under consideration. No doubt in part because of the theory of accountability applied by certain European countries in the field of asylum and the administrative and practical untidiness of claimants having to face inconsistent approaches to the consideration of their claims by different countries in Europe a system was required which would avoid such undesirable consequences. As Adan demonstrated, the Dublin Convention was not the cure-all that might have been hoped and something further was needed to streamline the desideratum of an asylum claim having to be considered by only one country in the European Union. On the other hand, it has to be recognised that considerations of administrative convenience cannot be permitted to override the rights of those who are genuinely seeking protection by having recourse to the ECHR or the Refugee Convention to achieve that end.

At one stage it emerged in argument that it was being contended by the Secretary of State that there was as great protection to be had from Article 3 as there was from the Refugee Convention. If this was so, it would follow that the decision in Adan was inexplicable for the reason that the gap in protection which that cases confirmed as existed in France and Germany was only a theoretical as opposed to a practicable objection to refoulement to either of those countries, or any other whose legal system had not adopted the theory of accountability. In one sense at least it is apparent that the ECHR provides wider protection to an asylum seeker. This is for the reason that the oppressive conduct which grounds the application does not have to be attributable to the State or, as the case may be, non-state agents. The opposing view is that if this were the true position the whole of section 11 was otiose. Moreover, there were powerful reasons why this was not an accurate presentation of the actual position. A similar argument had been deployed in, and rejected by, the Court of Appeal in Adan where, at p 503 of its judgment, the Court said

We have already referred to (counsel for the Secretary of State)’s argument that even if we were to conclude that the Secretary of State may not lawfully be satisfied that Germany or France are safe third countries in light of their approach to the convention, nevertheless he is entitled to be so satisfied on the footing that those countries offer alternative forms of protection in non-state agent cases which are in fact adequate when measured against the Convention’s requirements. We propose to deal with this aspect of the appeals very shortly, since (as we indicated in the course of argument) it seems clear to that the efficacy of these other measures cannot sensibly be judged otherwise than in the setting of a concrete case.

It is clear that there exist procedures, both in France and Germany, to which an unsuccessful asylum seeker may potentially have access, whereby he may avoid removal to the country where he asserts a fear of persecution if he is able to satisfy various conditions. (Counsel) submitted that these procedures themselves sufficed, or at least might suffice, to show that France and Germany would not send an asylum claimant to another country “otherwise than in accordance with the Convention” within the meaning of section 2(2)(c) of the 1996 Act. One of the arguments advanced by the asylum seekers to refute (counsel’s) contention (and there were several) was that if all else was equal, these other procedures do not afford anything like the basket of social rights within the country of refuge which are guaranteed to a refugee by the convention …: indeed some of the alternative procedures in question would appear to deny access to the most basic social provision to the claimant who brings his case within them.

In our judgment the Secretary of State, in administering section 2(2)(c) of the 1996 Act, 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. The Secretary of State is not concerned to see that the claimant will or may enjoy the social rights to which we have referred if he is permitted to stay in the third country. We would not, however, exclude the possibility that the claimant might in the third country be faced with so destitute an existence, if he were wholly excluded from both the right to work and from any access to social provision, and possessed no other resources upon which he might call, that he would be driven to return to the country of the feared persecution even though he had successfully claimed such rights of residence in the third country as are offered by those other forms of protection.

What also emerges from this passage is that although in general terms the domestic legislation recognises the existence of both the Refugee Convention and the ECHR, the Secretary of State is obliged to conform precisely with the domestic legislation by which he is bound. So, here too.

It is unarguably the position that the Secretary of State will only be concerned with the provisions of section 11 once he has decided in principle that the particular asylum seeker is person whom he wishes to remove from the United Kingdom. The question is whether or not his undoubted discretion in this area is restricted or limited in anyway, either as the claimants have submitted viz that he must be satisfied that the third country will not return the asylum seeker “otherwise than in accordance with the convention” or otherwise by the existence, and terms, of any policy which he may have towards the removal of such persons under section 11.

Conclusion on the principal issue

Not only do I find it impossible to hold that the observations of the different courts which have from time to time had to consider the matter, whether in more or less detail does not seem to me to matter, were wrong, but on the contrary am respectfully entirely satisfied that that they represent the correct interpretation of the section. That is to say that, in my judgment, the Secretary of State has an unfettered discretion whether or not he will remove a person if the conditions in section 11(2) are met. For the purposes of section 11, the Secretary of State is not required to form any opinion on the matter which, by contrast, is reserved for him in relation to the matters contained in section 12(2) and (7) of the Act. Since the Secretary of State is not required to form an opinion in that respect, there is no basis upon which the court can review his decision. The exception to this position would be if the Secretary of State decides that he will operate a policy which he has announced, in which case the usual checks on the lawful operation of that policy would be available on grounds which are familiar to all in the field of judicial review.

The availability of a defeasible right of appeal (subject to section 72 certification) to an asylum seeker on grounds which may be simply recognised as ECHR grounds is intended to ensure that the Secretary of State does not act unlawfully under the Human Rights Act 1998, or that, if he does, that can be put right by way of appeal under section 65 of the Act, unless he is satisfied that the claim that he is acting in a way inconsistent with the ECHR is ‘manifestly unfounded’.

The individual ECHR points

MOHAMMAD

In light of the fact that the decision of Collins J in Thangarasa was upheld in the Court of Appeal, it is, in my judgment unarguable, at least at first instance, that the decision of the Strasbourg Court in TI to the effect that Germany was not a country in which there was a real risk that the applicant would be refouled in breach of Article 3 was case specific. This court is obliged to respect the judgments both of the Strasbourg Court and the Court of Appeal which were to that effect. Quite apart from remedies which the claimant might have under German municipal law, it was found that he would be able to petition the Strasbourg Court and that Germany had sufficient procedures to ensure that a claimant would not be deported while his petition to that Court was still extant. There has, quite simply, been no evidence produced why there is any reason to fear that Germany would not comply with Rule 39 of the Strasbourg Court and suspend the execution of a deportation order to enable that court to adjudicate on the petition.

This is sufficient to dispose of the threatened breach of Article 3 of the ECHR.

It was not accepted by the Secretary of State that in this case there would be any interference with the claimant’s Article 8 rights. Even if there were, given that the extent to which there had been any recognisable form of family life between the various members of the claimant’s family before the immigration status of the family had become ‘precarious’, such interference as there would be would be minimal at worst; see Ayaji (above). The claimant has not made out his case on this issue, any more than he has on the others.

SAKHEE

The decision in relation to section 11 and the attitude of Germany to refouled asylum claimants is as I have already held in the case of the previous claimant. The Article 8 claim is shadowy, at best. The claim that return to Germany would constitute a breach of the claimant’s Article 6 rights was a matter of pure fact for the Secretary of State to determine. There is, in my judgment, no proper basis upon which his decision is amenable to challenge on judicial review.

MANOHARAN and YOGARAJAH

The same comments also apply.

It follows that the answers to the five questions posed by claimant’s counsel at the outset of his submissions are as follows:

(See paragraph 19, above):

1. Yes

2. Yes

3. No

(See paragraphs 27 and 28 above):

4. The Secretary of State is not obliged to rely on his decision under section 11(1), when deciding whether or not to certify a human rights allegation as manifestly unfounded. It would however be something which he was entitled to consider, but it would not be determinative.

5. There was no irrationality

and these applications must all be dismissed. It will have been noted that the case of Thambirajh Manoharan was listed with the other cases, it was not pursued. The application in that case must also be dismissed.

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MR JUSTICE TURNER: In this case I have circulated a draft of the judgment I proposed to deliver. As a result, certain typographical corrections were sent back to me. I have incorporated some but by no means all of those, and have made one or two minor textual alterations. Subject to that, I now formally hand down the judgment.PRIVATE

MISS GIOVANNETTI: My Lord, on behalf of the Secretary of State, could I ask that the claimants pay the Secretary of State's costs? They are all legally aided, and we are content with the usual order not to be enforced without further order of the court.

MR JUSTICE TURNER: Yes.

MISS GIOVANNETTI: Thank you.

MR JUSTICE TURNER: As you are all legally aided, you require detailed assessment?

MR HENDERSON: Yes, my Lord.

MR JUSTICE TURNER: All the certificates lodged, are they?

THE ASSOCIATE: Yes, my Lord.

MR JUSTICE TURNER: Very well, detailed assessment.

MR HENDERSON: My Lord, I have an application for permission to appeal on behalf of Mohammed. This case raises an issue of considerable public importance, as was reflected both by the argument from each side and also in your Lordship's judgment. My Lord, on no previous occasion has legislation been enacted which, on the defendant's case, prohibits the courts from intervening where they conclude that the Refugee Convention has been breached. Indeed, in the instant case - of course it allows the executive to act in a manner which the courts have already determined in that of Aitsegeur - that would breach the Refugee Convention. While the defendant's contentions as to the interpretation of section 11 have been positively received in other cases, the judgments, in our submission, indicate that the matter was not investigated in any comparable depth to the present case. Only two of these cases were about first instance. The observations of Lord Steyn in Adan and Aitseguer were not just obiter, but the point was one on which no argument whatsoever was addressed in their Lordships' House.

The Court of Appeal has, of course, refused permission to Ibrahim. But it appears, again particularly when one compares the Court of Appeals' judgment with that of your Lordship's, that the arguments before the Court of Appeal were far less developed than in the present case. The Court of Appeal spent two paragraphs on the point of principle before spending considerably longer explaining why it did not arise in Ibrahim, because that is not even a non-state case in the first place.

My Lord, we also note that on 6th November 2001 Laws LJ in another case called Hatim (which had relied on the grounds in Nahali (?)) adjourned that case in the Court of Appeal pending the judgment in this case, after he had considered the grounds upon which your Lordship granted permission in this case. We, therefore, submit that the judgment in Ibrahim is not a basis for concluding that there is no realistic prospect that the Court of Appeal would accept our arguments and, in particular, my Lord, we would wish to pursue our case that section 11 is a (inaudible) clause, and therefore should not be subject to the ordinary rules of statutory interpretation.

My Lord, as to our Article 8 case, I do not repeat the arguments which we made before your Lordship. But we would respectfully wish to submit to the Court of Appeal that on the evidence, in particular the witness statements submitted, that, regardless of the Secretary of State's own view, he could not say that there was no chance whatever that an adjudicator might come to a different conclusion on the individuals facts of our case.

My Lord, finally, the case is plainly of relevance to many others, present and future. We say that both there is a realistic prospect of success and, the alternative criterion for granting permission to appeal, that there is another compelling reason for hearing the appeal, applies in this case. If your Lordship agrees that the argument----

MR JUSTICE TURNER: The compelling reason might be, and it may be that this would be Miss Giovannetti's submission, that it ultimately delays the quietus on these cases. I do not suppose you would be happy with that?

MR HENDERSON: If your Lordship agrees that the arguments advanced deserve consideration by the Court of Appeal, then by granting permission today rather than us having to seek a decision on the permission from the Court of Appeal, as I anticipate Miss Giovannetti will suggest, and the delays in receiving full consideration from the Court of Appeal will be less, and we will receive a proper binding decision on a full hearing from the Court of Appeal on this very important legal and public point of principle more quickly. My Lord, those are my submissions.

MR JUSTICE TURNER: Thank you. Can you add to that?

MR WILLIAMS: My Lord, I apply on behalf of Mr Manoharan for leave to appeal. I adopt the submissions of Mr Henderson in full. I would simply add in Mr Manoharan's case that also the Court of Appeal ought to decide the issue of Thangarasi, which awaits determination by the House of Lords at the moment. I understand the petitions are now (lodged both in Thangarasi and Yogathas) before the House of Lords and await adjudication. Obviously, the outcome in the House of Lords will impact on those parts of your judgment that dealt with Thangarasi and TI. It is on that basis that I seek leave to appeal to the Court of Appeal at this point in time. Those are my submissions, my Lord.

MR JUSTICE TURNER: Thank you.

MR MCGIVERN: My Lord, I seek permission in relation to the Article 8 claim. I would submit that given the findings are shadowy at best, and it cannot be said that no adjudicator could have found that there would be a breach of Article 8, I would submit there is a realistic prospect of success in the Court of Appeal.

MR HARDING: My Lord, I appear on behalf of the fourth claimant, and I adopt the arguments of my learned friends Mr Henderson, Mr Williams, and Mr McGivern.

MR JUSTICE TURNER: Thank you.

MISS GIOVANNETTI: My Lord, you will not be surprised to hear the application is opposed on behalf of the Secretary of State. Briefly, we say the arguments may well have been more fully developed and differently developed before your Lordship, but the underlining issue, the central issue, has been considered on a number of occasions by the courts, including on two occasions by the Court of Appeal in Ibrahim and Thangarasi.

MR JUSTICE TURNER: This was the point of my paragraph 50.

MISS GIOVANNETTI: Precisely, my Lord. We say your Lordship is entirely consistent with the underlying reasoning of the court and the Court of Appeal, particularly in those decisions. For that reason, this application has no real prospect of success and, certainly in circumstances where there has been such judicial consideration, it should be a matter for the Court of Appeal to grant permission to appeal, if they feel it warrants yet further consideration by themselves.

My Lord, we say there is no arguable error in your Lordship's judgment. It is not unusual for cases to be adjourned when permission has not been granted, in fact other cases have been adjourned pending this.

MR JUSTICE TURNER: We have to be very careful about that any way, do we not?

MISS GIOVANNETTI: My Lord, yes.

MR JUSTICE TURNER: Even if permission were granted, we should not draw any conclusions from it.

MISS GIOVANNETTI: Yes, my Lord. Essentially, those are the Secretary of State's submissions.

MR JUSTICE TURNER: Yes. I endeavoured to express in paragraph 50 of the judgment the fact that there is a great weight of judicial authority, both direct and indirect, which supports the construction of section 11, which I have adopted. It will be for the Court of Appeal to say whether or not in the light of that weight of authority, and whatever weight the Court of Appeal might decide to give my judgment, whether there should be an appeal to that court on the section 11 point.

Having found that the human rights points are unarguable, it would be wholly inconsistent with that judgment were I to grant permission to appeal. The applications, therefore, for permission to appeal are all refused.

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