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