No duty to disclose material in asylum appeal

LAW REPORT v 21 February 1996

Regina v Secretary of State for the Home Department, ex parte Abdi and ex parte Gawe; House of Lords (Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley and Lord Lloyd of Berwick); 15 February 1996

On appeals by asylum seekers against the Home Secretary's certificates that their claims that their removal to a third country would be contrary to the United Kingdom's obligations under the Geneva Convention relating to the Status of Refugees were without foundation, the Home Secretary was not obliged to disclose all the material on which he based his certificates. The Home Secretary's statement that he had no reason to believe the third country would not comply with its Convention obligations was sufficient evidence to support a certificate.

The House of Lords by a majority dismissed appeals by the applicants from the Court of Appeal's decision (Law Report, 21 April 1994) affirming the special adjudicators' decisions to uphold the Home Secretary's certificates.

The applicants, nationals of Somalia, claimed asylum on arrival here from Somalia via Spain. The Home Secretary, stated that on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, he had no reason to believe that the authorities there would not comply with their obligations under the Convention. He certified that the applicants' claims that their removal from the UK would be contrary to the UK's obligations under the Convention were without foundation. Special adjudictors upheld those decisions.

Mr Justice Sedley quashed the adjudicators' decisions but the Court of Appeal by majority (Lord Justice Neill and Lord Justice Peter Gibson; Lord Justice Steyn dissenting) allowed the Home Secretary's appeal.

Ian Macdonald QC and Christa Fielden (Param & Co) for the applicants; David Pannick QC and Ian Ashford-Thom (Treasury Solicitor) for the Home Secretary; Rabinder Singh (Treasury Solicitor) for the special adjudicators.

Lord Lloyd said that the main issue was whether the Home Secretary was obliged to give discovery of the material on which he based his without foundation certificate. A subsidiary issue was whether there was evidence on which the special adjudicators could uphold the Home Secretary's decisions.

Asylum appeals under section 8 of the Asylum and Immigration Appeals Act 1993 were governed by the Asylum Appeals (Procedure Rules) 1993 (SI no 1661).

The rules did not impose on the Home Secretary any obligation to give discovery. There was a specific provision for the disclosure of the Home Secretary's decision letter, notes of interview and any document referred to in the decision letter. An implied obligation to disclose all relevant documents was wholly inconsistent with the express obligation to disclose specific documents.

If the courts were to supplement the rules by imposing some obligation on the Home Secretary to give discovery in asylum appeals, there would be a risk of frustrating the legislative purpose that "without foundation" appeals should be considered with all due speed.

Turning to the subsidiary point, the Home Secretary's statement of his knowledge and experience might not amount to much, but was at least some evidence in support of the certificates. The special adjudicators were entitled on that evidence to uphold the certificates.

Lord Slynn, dissenting, said that the special adjudicator must make an independent judgment and consider de novo whether he was satisfied that the third country was a safe country. It was unacceptable that the special adjudicators were provided with documents limited to those which supported the Home Secretary's decision, but not documents which might support the appellant's contention that the third country was not safe. The current procedure was calculated to produce unfairness.

Further, there was no sufficient material on which the special adjudicators could be satisfied that the "no foundation" certificates were justified.

Lord Keith and Lord Kinkel agreed with Lord Lloyd.

Lord Mustill agreed with Lord Lloyd that there was no duty to disclose all material information but did not accept that the Home Secretary's statement was evidence sufficient to support his certificates.