Law Report: Home Secretary could return asylum seeker to France

LAW REPORT v 8 May 1997
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The Independent Online
Regina v Secretary of State for the Home Department, ex parte Canbolat; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Evans and Lord Justice Schiemann) 30 April 1997

When considering an application by an asylum seeker from a "safe country", the Home Secretary should assure himself that, if returned to that safe country, there would be no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the 1951 Geneva Convention.

The Court of Appeal affirmed the Divisional Court's dismissal of an application for judicial review of the Home Secretary's decision, authorising the removal of the applicant from the United Kingdom to France.

The applicant, a Turkish citizen of Kurdish origin, arrived in the United Kingdom on 31 August 1996 from Paris and claimed political asylum. She was granted temporary leave to enter, and the immigration officer's decision as to her removal was stayed pending the outcome of her application for judicial review.

Manjit S. Gill and Asoka Dias (Bluett & Co, Edmonton) for the applicant; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary.

Lord Woolf MR said that the issue was whether the Home Secretary's decision to issue a certificate under section 2(2) of the Asylum and Immigration Act 1996, to the effect that the applicant should be returned immediately to France where her claim to asylum would be heard, was one to which he was entitled to come.

The Home Secretary accepted that because of the time which had elapsed since the applicant's arrival in this country she could not be removed until her application for asylum was heard and determined on its merits. That meant that her appeal was pursued as a matter of principle.

Among those to whom the Asylum and Immigration Act 1996 applied were asylum seekers from a "safe country", which was a country other than that where the asylum seeker feared persecution.

They could be returned to the safe country subject to the important proviso that it was not one where they would be persecuted, or from which they would be returned to the country where they alleged he would be persecuted, without the merits of their asylum claim being properly investigated, or in breach of the Geneva Convention.

Special adjudicators, when determining appeals prior to the removal of their jurisdiction by the 1996 Act, had indicated that they were not satisfied that France could be treated as a safe country.

The Home Secretary was under an obligation to satisfy himself that either those decisions of special adjudicators were in his opinion wrong, or that the position in France had since changed for the better.

It was submitted on behalf of the Home Secretary that in considering an application for asylum he was entitled to ask himself whether, in his opinion, there was a reasonable degree of likelihood that France would send the appellant to Turkey otherwise than in accordance with the Convention. The Divisional Court appeared to have accepted that submission.

Their Lordships did not agree. That submission involved a lower threshold than that laid down by the 1996 Act. What was required was that there should be "no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention". The unpredictability of human behaviour, or the remote possibility of changes in administrative law or procedures which there was no reason to anticipate, would not be a real risk.

It was for the Home Secretary to evaluate the material. If he could properly have come to the decision which he did on that material then the court could not interfere.

Like the Divisional Court their Lordships had carefully considered all the material placed before them. They understood the concerns of the special adjudicators. However, there was a difference between the decisions of the special adjudicators and the responsibilities of the court. The special adjudicators, on an appeal, considered the material which was before them and made their own judgment as to the merits. The court's role was limited to that of review.

Approaching the question thus, it could not be said that the Home Secretary had not been entitled to come to the opinion that he did.

Kate O'Hanlon, Barrister