|Judgments - Regina v. Secretary of State For The Home Department, Ex Parte Adan|
Regina v. Secretary of State For The Home Department Ex Parte Aitseguer
It follows that the enquiry must be into the meaning of the Refugee Convention approached as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions. It is necessary to determine the autonomous meaning of the relevant treaty provision. This principle is part of the very alphabet of customary international law. Thus the European Court of Justice has explained how concepts in the Brussels Convention must be given an autonomous or independent meaning in accordance with the objectives and system of the convention: see Martin Peters Bauunternehmung GmbH v. Zuid Nederlandse Aannemers Vereniging, Case 34/82,  E.C.R. 987, 1002, para 9-10; SPRL Arcado v. SA. Haviland, Case 9/87, Opinion of Advocate General Slynn,  E.C.R. 1539, 1549; Athanasios Kalfelis v. Banklaus Schröder Münchmeyer, Hengst and Co. and others, Case 189/87,  E.C.R. 5565, 5585, para 16; Jakob Handte & Co. GmbH v. Traitements Mécano-chimiques des Surfaces SA (TMCS), Case C-26/91  E.C.R. 1-3967, 3993, para. 10. Closer to the context of the Refugee Convention are human rights conventions where the principle requiring an autonomous interpretation of convention concepts ensures that its guarantees are not undermined by unilateral state actions. Thus the European Court of Human Rights has on a number of occasions explained that concepts of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) must be given an autonomous meaning, e.g. concepts such as "civil right" and "criminal charge". The decisions articulating this idea are too numerous to cite but I would mention one recent example, namely Chassagnou and Others v. France, App.s Nos. 25088/94, 28331/95, 28443/95, April 29, 1999, 7 Butterworth H.R. Cas. 151 as well as the clear analysis in Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention, 2000, C0-07, at pp. 165-166.
In James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (UK) Ltd.  A.C. 141, 152, Lord Wilberforce observed that a treaty should be interpreted "unconstrained by technical principles of English law, or by English legal precedent, but on broad principles of general acceptation"; see also H & Others (Minors) (Abduction: Acquiescence)  A.C. 72, 87. The rules governing the interpretation of treaties are articles 31 (General rule of interpretation) and article 32 (Supplementary means of interpretation) of the Vienna Convention on the law of Treaties (1980) (Cmnd. 7964), which codify already existing public international law: Fothergill v. Monarch Airlines Ltd.  A.C. 251, 282D. It is common ground that there are no relevant supplementary means of interpretation to be considered in regard to the Refugee Convention and I will therefore not set out article 32. But article 31 is important in the present context. It reads as follows:
It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in articles 31 and 32 and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: article 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court of Justice is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.
There were contrary arguments presented by counsel for the Secretary of State. The most important were the following. First, that the objective of the legislative changes effected by the Act of 1996 show that it is inherently unlikely that Parliament intended that the Secretary of State, when considering whether to issue a certificate under section 2, should be required to proceed on the basis that there is only one true interpretation of the Refugee Convention. I would reject this contention. The subject of the Refugee Convention is fundamental rights. It is fair to assume that if Parliament had intended to introduce in 1996 the relativist and imprecise notion of "the Convention as legitimately interpreted by the third country concerned," which tends to undermine the protections guaranteed by the Refugee Convention, it would have made such legislative intent clear by express words. Secondly, counsel was able to rely on observations in the Court of Appeal in Kerrouche v. Secretary of State for the Home Department  Imm. A.R. 610, 615 and Iyadurai v. Secretary of State for the Home Department  Imm. A.R. 470, at 476, which tend to support the idea of a range of permissible meanings of the Refugee Convention. For the reasons I have given I do not accept that in this respect the law was correctly stated in these cases. Thirdly, counsel for the Secretary of State placed great reliance on the fact that on 4 March 1996 the member states of the European Union agreed a Joint Position on the harmonised application of the definition of the term "refugee" in article 1 of the Refugee Convention. Paragraph 5.2 of the Joint Position States:
Counsel put too much weight on this document. Laws L.J. convincingly explained in his judgment that the argument treats what is necessary as if it were sufficient for the purpose of ascertaining the true interpretation of section 2(2)(c) of the Act of 1996 read with article 1(A)(2) of the Convention. I agree. Fourthly, counsel for the Secretary of State painted a picture that if his argument was rejected, the Secretary of State was charged with an impossible task. He said:
The sky will not fall in. If there is one autonomous meaning of the Refugee Convention, the task of the Secretary of State will in some ways be simplified. He need only consider and apply the true interpretation of the Refugee Convention rather than a multiplicity of potential issues about the legitimacy of particular interpretations by other countries. Fifthly, counsel for the Secretary of State raised a matter which did cause me concern at one stage, namely whether the view I have adopted contains an implicit criticism of the judicial departments of Germany and France. I certainly intend no criticism of the interpretations adopted in good faith in Germany and France. Unanimity on all perplexing problems created by multilateral treaties is unachievable. National courts can only do their best to minimise the disagreements. But ultimately they have no choice but to apply what they consider to be the autonomous meaning. Here the difference is fundamental and cannot be overcome by a form of words. The House is bound to take into account the obligations of the United Kingdom government and to apply the terms of section 2(2)(c) of the Act of 1996.
In my view the contention of the Secretary of State is in conflict with the logic of treaty law, and in particular the logic of the Refugee Convention, and finds no support in the language of the Act of 1996. The Court of Appeal correctly concluded that there is only one true interpretation of article 1A(2) of the Refugee Convention. It is as I have explained an autonomous interpretation as befits a basic concept in the Refugee Convention.
Issue (B): What is the relevant autonomous meaning of the Refugee Convention?
In Adan v. Secretary of State for the Home Department  1 A.C. 293 the House of Lords authoritatively rejected the accountability theory and adopted the persecution theory. Lord Lloyd of Berwick held, at p. 306A-B, that the protection of the Refugee Convention extends to:
Although not relevant to the cases before the House, I draw attention to the fact that Lord Lloyd of Berwick qualified his ruling as follows, at 311B:
Three Law Lords, (Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead) agreed with the opinion of Lord Lloyd of Berwick and Lord Slynn of Hadley gave a separate judgment which on the material point is to the same effect: p. 302D.
It is important to recognise that in Adan Lord Lloyd of Berwick made clear that the enquiry related to the autonomous meaning of the Refugee Convention. He said, at p. 305C-D:
And Lord Slynn of Hadley approached the matter in the same way. The conclusions in Adan were endorsed by the House in Horvath v. Secretary of State for the Home Department  3 W.L.R. 379.
On the supposition that article 1A(2) must be given one autonomous interpretation counsel for the Secretary of State accepted that the holding in Adan represents that interpretation. It is unnecessary therefore to travel over the same ground again. Two points in amplification of the judgments in Adan must, however, be mentioned. First, it is accepted that the United Kingdom view is shared by the majority of states. It also appears to be gaining ground. Secondly, the Handbook on Procedures and Criteria for Determining Refugee Status, 1979, published by the U.N. High Commission for Refugees ("UNHCR"), states in paragraph 65:
Under articles 35 and 36 of the Geneva Convention, and under article II of the Protocol of 1967, the UNHCR plays a critical role in the application of the Refugee Convention: compare the Statute of the Office of the United Nations High Commissioner for Refugees, General Assembly Resolution 428(V) of 14 December 1950, para. 8. Contracting states are obliged to co-operate with UNHCR. It is not surprising therefore that the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals: Aust, Modern Treaty Law and Practice, 2000, 191.
The relevant autonomous meaning of article 1(A)(2) of the Refugee Convention is therefore as explained in Adan. Like the Court of Appeal I would hold that there is no material distinction between a country where there is no government (like Somalia) and a country when the government is unable to afford the necessary protection to citizens (such as Algeria). Both are covered by article 1A(2).
Issue C: Was the Secretary of State's certification lawful?
On the stark and clear cut facts on which the House has been asked to consider the two appeals I conclude that the Secretary of State wrongly proceeded on the twin assumption that there is a band of permissible meanings of article 1A(2) and that the practice hitherto adopted in Germany and France falls within the permissible range. The Secretary of State materially misdirected himself. His decisions must be quashed. It is only necessary to add that cases under the Refugee Convention are always particularly fact-sensitive. Where the position is less straight forward different considerations may arise.
Issue D: Alternative Protection in France and Germany
It was sensibly agreed between counsel that the House is not in a position to express any opinion on alternative procedures for the protection of asylum seekers in Germany and France. I do not therefore propose to say anything about this aspect.
For these reasons I would dismiss both appeals.
Article IA(2) of the 1951 Geneva Convention relating to the status of Refugees defines a "refugee" as any person who
Article 33 of the Convention provides:
The United Kingdom has accepted this obligation under the Convention and Parliament recognised the primacy of the Convention when a person claims asylum in the United Kingdom in enacting the Asylum and Immigration Appeals Act 1993. Section 1 provides:
Section 2 provides:
Section 6 gave protection to persons making a claim for asylum and provided:
Where a refugee claimed asylum in more than one Member State of the European Communities difficulties arose as to which State was responsible for examining the claim in order to determine whether the claimant should be granted asylum in discharge of the obligations imposed by the Geneva Convention. A particular problem arose of "forum-shopping" by asylum seekers. The Dublin Convention 1990 entered into by the Member States was intended to make provisions for these difficulties and one of the recitals in the Preamble states:
The Articles of the Dublin Convention give effect to the intent stated in the Preamble and article 3 provides:
Sections 2 and 3 of the Asylum and Immigration Act 1996 were enacted in the light of the Dublin Convention. Section 2 provides:
Section 3 gives a right of appeal against a certificate issued under section 2(1), but section 3(2) provides:
My Lords, the context in which the cases of the two applicants, Ms. Adan and Mr. Aitseguer, come before the courts of this country is that there are two different approaches to the meaning of "persecution" under the Geneva Convention. One view ("the accountability theory") is that conduct can only amount to persecution within the meaning of article 1A(2) of the Geneva Convention if a state can be regarded as accountable for it. On this view the Geneva Convention does not apply where, in the country in which persecution is feared, the state is too weak to provide effective protection, or the state has collapsed. The other view ("the persecution theory") is that persons are entitled to protection as refugees if not given protection against persecution in their own country, irrespective of whether this is due to a lack of power in the state or due to encouragement or toleration of the persecution by the state. It is clear from the speech of Lord Lloyd of Berwick, with which Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead concurred, in Adan v. Secretary of State for the Home Department  1 A.C. 293, 306B, that in the United Kingdom the proper construction of the Geneva Convention requires the acceptance of the persecution theory.
The Secretary of State accepts, however, that the courts of Germany and of France adopt the accountability theory and interpret the Geneva Convention as being concerned with the relation between an individual and his or her State, so that international protection under the Covenant only applies if the claimant's country is responsible for, or complicit in, the persecution of its own citizens.
In relation to Ms. Adan, the German authorities have taken the view that government authority in Somalia has collapsed, so that there is no State to which persecution can be attributed. In relation to Mr. Aitseguer, the Secretary of State accepts that there is a real risk that the French authorities will take the view that there is no State toleration or encouragement of the violent activities of the Groupe Islamique Armé which Mr. Aitseguer fears, and therefore no persecution attributable to the Algerian State. Accordingly the Secretary of State accepts that there is a real risk that if Ms. Adan were sent to Germany the German authorities (including the German court), applying the accountability theory, would reject her claim for asylum and send her back to Somalia. He also accepts that there is a real risk that if Mr. Aitseguer were sent to France, the French authorities (including the French court) applying the accountability theory, would reject his claim for asylum and send him back to Algeria.
The essence of the reasoning of the Court of Appeal  3 W.L.R. 1274, is set out at 1295-1296:
And at p. 1296, after referring to the 1967 Protocol to the Geneva Convention, the court states: