Law Report: Home Secretary issued unlawful certificates

Wednesday Law Report: 28 July 1999 Regina v Secretary of State for the Home Department, ex parte Adan; Regina v Secretary of State for the Home Department, ex parte Subaskran; Regina v Secretary of State for the Home Department, ex parte Aitseguer Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Laws and Lord Justice Mance) 23 July 1999

THE SECRETARY of State for the Home Department was not entitled to treat countries which did not recognise persecution by non-state agents in which the state was not complicit as qualifying for protection under the 1951 Geneva Convention on the Status of Refugees as "safe third countries". The issue of certificates under section 2(2)(c) of the Asylum and Immigration Act 1996 and the return of asylum seekers to such third countries was, therefore, unlawful.

The Court of Appeal held that certificates issued by the Secretary of State under section 2(2)(c) of the 1996 Act in respect of the three applicants were unlawful.

The three applicants were asylum seekers, each of whom claimed that he or she would be persecuted if returned to his or her country of origin, not by authorities of the state, but by "non-state" agents. Two of the three had arrived in the United Kingdom having first passed through Germany. The third had first passed through France.

They claimed asylum in the United Kingdom, but the Secretary of State decided to return them respectively to France and Germany for substantive consideration of their claims, and issued certificates under section 2(2)(c) of the Asylum and Immigration Act 1996. The applicants asserted that France and Germany were not safe third countries to which they might lawfully be returned, since they did not recognise persecution by non-state agents as qualifying for protection under the 1951 Geneva Convention on the Status of Refugees, at least if the state itself was not in any sense complicit in the persecution.

On 23 June 1999 the Secretary of State notified the applicants that he now intended to consider their asylum claims on their substantive merits. The court had decided to consider the substance of the appeals, notwithstanding that they had become academic from the point of view of the individual applicants, because it was plain that they raised a question of general importance which also arose in a large number of pending cases.

Nicholas Blake QC and Stephanie Harrison (E. Edwards Son & Noice) for Adan; Manjit Gill and C. Williams (Genga & Co) for Subaskaran; Andrew Nicol QC and Mark Henderson (Howe & Co) for Aitseguer; David Pannick QC and Steven Kovats (Treasury Solicitor) for the Secretary of State.

Lord Justice Laws handed down the judgment of the court. The Secretary of State and the English courts would afford a proper respect to the system and practice of the third country in question, but that third country must apply the 1951 Geneva Convention on the Status of Refugees. If a signatory state were to take a position which was, as a matter of law, at variance with the Convention's true interpretation it could not be regarded as a "safe third country".

It followed therefore that the issue which had to be decided was whether or not, as a matter of law, the scope of article 1A(2) of the Convention extended to persons who feared persecution by non-state agents in circumstances where the state was not complicit in the persecution, whether because it was unable or unwilling to afford protection.

There was no doubt that such persons were entitled to the Convention's protection. That followed naturally from the words of article 1A(2) ". . . is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". Moreover, although the evil that the Convention was designed to confront originally was persecution by the state, it was clear that, by the 1967 Protocol to the Convention, the signatory states intended that it should afford continuing protection for refugees in the changing circumstances of the present and future world.

Kate O'Hanlon,

Barrister

Arts and Entertainment
Call The Midwife: Miranda Hart as Chummy

tv Jenny Lee may have left, but Miranda Hart and the rest of the midwives deliver the goods

Arts and Entertainment
Legendary blues and rock singer Joe Cocker has died of lung cancer, his management team as confirmed. He was 70
music The singer has died aged 70
Arts and Entertainment
Maisie Williams looks concerned as Arya Stark
tv
Arts and Entertainment
photography Incredible images show London's skyline from its highest points
Arts and Entertainment
'Silent Night' last topped Classic FM's favourite Christmas carol poll in 2002
classical
PROMOTED VIDEO
Arts and Entertainment
Rhys says: 'I'm not playing it for laughs, but I have learnt that if you fall over on stage, people can enjoy that as much as an amazing guitar solo'
musicGruff Rhys on his rock odyssey, and the trouble with independence
Arts and Entertainment
Krysia and Daniel (Hand out press photograph provided by Sally Richardson)
How do today's composers answer the challenge of the classical giant?
Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

ebooks
News
Shenaz Treasurywala
film
News
tv
Arts and Entertainment
Jason Watkins as Christopher Jefferies
tv
Arts and Entertainment
Star Wars Director JJ Abrams: key character's names have been revealed
film
Arts and Entertainment
Pharrell Williams won two BBC Music Awards for Best Song and International Artist
music
Arts and Entertainment
Mark, Katie and Sanjay in The Apprentice boardroom
TV
Arts and Entertainment

Film The critics but sneer but these unfashionable festive films are our favourites

Arts and Entertainment
Frances O'Connor and James Nesbitt in 'The Missing'

TV We're so close to knowing what happened to Oliver Hughes, but a last-minute bluff crushes expectations

Arts and Entertainment
Joey Essex will be hitting the slopes for series two of The Jump

TV

Who is taking the plunge?
Arts and Entertainment
Katy Perry as an Ancient Egyptian princess in her latest music video for 'Dark Horse'

music
Arts and Entertainment
Dame Judi Dench, as M in Skyfall

film
Arts and Entertainment
Morrissey, 1988

TV
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Isis in Iraq: Yazidi girls killing themselves to escape rape and imprisonment by militants

    'Jilan killed herself in the bathroom. She cut her wrists and hanged herself'

    Yazidi girls killing themselves to escape rape and imprisonment
    Ed Balls interview: 'If I think about the deficit when I'm playing the piano, it all goes wrong'

    Ed Balls interview

    'If I think about the deficit when I'm playing the piano, it all goes wrong'
    He's behind you, dude!

    US stars in UK panto

    From David Hasselhoff to Jerry Hall
    Grace Dent's Christmas Quiz: What are you – a festive curmudgeon or top of the tree?

    Grace Dent's Christmas Quiz

    What are you – a festive curmudgeon or top of the tree?
    Nasa planning to build cloud cities in airships above Venus

    Nasa planning to build cloud cities in airships above Venus

    Planet’s surface is inhospitable to humans but 30 miles above it is almost perfect
    Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

    Clocks, rifles, swords, frogmen’s uniforms

    Surrounded by high-rise flats is a little house filled with Lebanon’s history
    Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

    Four months after the bombardment, Gaza’s wounds are yet to heal

    Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
    Gastric surgery: Is it really the answer to the UK's obesity epidemic?

    Is gastric surgery really the answer to the UK's obesity epidemic?

    Critics argue that it’s crazy to operate on healthy people just to stop them eating
    Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

    Homeless Veterans appeal: Christmas charity auction

    Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
    Pantomime rings the changes to welcome autistic theatre-goers

    Autism-friendly theatre

    Pantomime leads the pack in quest to welcome all
    The week Hollywood got scared and had to grow up a bit

    The week Hollywood got scared and had to grow up a bit

    Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
    From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

    Panto dames: before and after

    From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
    Thirties murder mystery novel is surprise runaway Christmas hit

    Thirties murder mystery novel is surprise runaway Christmas hit

    Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
    Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

    Anne-Marie Huby: 'Charities deserve the best'

    Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
    The botanist who hunts for giant trees at Kew Gardens

    The man who hunts giants

    A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there