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

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    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, [1983] E.C.R. 987, 1002, para 9-10; SPRL Arcado v. SA. Haviland, Case 9/87, Opinion of Advocate General Slynn, [1988] E.C.R. 1539, 1549; Athanasios Kalfelis v. Banklaus Schröder Münchmeyer, Hengst and Co. and others, Case 189/87, [1988] E.C.R. 5565, 5585, para 16; Jakob Handte & Co. GmbH v. Traitements Mécano-chimiques des Surfaces SA (TMCS), Case C-26/91 [1992] 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. [1978] 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) [1998] 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. [1981] 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:

    "(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

    (2) The context of the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)

      any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b)

      any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument relating to the treaty.

    (3) There shall be taken into account, together with the context:

(a)

      any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b)

      any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)

      any relevant rules of international law applicable in the relations between the parties.

    (4) A special meaning shall be given to a term if it is established that the parties so intended".

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 [1997] Imm. A.R. 610, 615 and Iyadurai v. Secretary of State for the Home Department [1998] 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:

    "Persecution by third parties

    Persecution by third parties will be considered to fall within the scope of the Geneva Convention where it is based on one of the grounds in article 1A of that Convention, is individual in nature and is encouraged or permitted by the authorities. Where the official authorities fail to act, such persecution should give rise to individual examination of each application for refugee status, in accordance with national judicial practice, in the light in particular of whether or not the failure to act was deliberate. The persons concerned may be eligible in any event for appropriate forms of protection under national law".

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:

    "For the Secretary of State to be required to assess the details of the judgments of the appellate courts of other EU States, and form a judgment on whether they are consistent with the 1951 Convention, with that judgment subject to reassessment by the courts of this country by way of judicial review, would impose a complex and time-consuming task that is inconsistent with, and would substantially frustrate, the objective of the 1996 Act to implement the principles in the Dublin Convention and speedily return asylum seekers to other EU States for the merits of their claims to be considered."

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 [1999] 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:

    "the important class of those who are sometimes called 'third party refugees,' i.e. those who are subject to persecution by factions within the state. If the state in question can make protection available to such persons, there is no reason why they should qualify for refugee status. They would have satisfied the fear test, but not the protection test. Why should another country offer asylum to such persons when they can avail themselves of the protection of their own country? But if, for whatever reason, the state in question is unable to afford protection against factions within the state, then the qualifications for refugee status are complete. Both tests would be satisfied."

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:

    "I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show what Mr. Pannick calls a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare."

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:

    "I return to the argument on construction. Mr. Pannick points out that we are here concerned with the meaning of an international Convention. Inevitably the final text will have been the product of a long period of negotiation and compromise. One cannot expect to find the same precision of language as one does in an Act of Parliament drafted by parliamentary counsel. I agree. It follows that one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole and the purposes which the framers of the Convention were seeking to achieve rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach."

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 [2000] 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:

    "Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

    (My emphasis)

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.

Disposal

    For these reasons I would dismiss both appeals.

LORD HUTTON

My Lords,

    Article IA(2) of the 1951 Geneva Convention relating to the status of Refugees defines a "refugee" as any person who—

    "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence …., is unable or, owing to such fear, is unwilling to return to it."

Article 33 of the Convention provides:

    "1. No contracting state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

    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:

    "the 1971 Act" means the Immigration Act 1971;

    "claim for asylum" means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom; and

    "the Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention."

Section 2 provides:

    "Primacy of Convention

    Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

Section 6 gave protection to persons making a claim for asylum and provided:

    "During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

    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:

    "Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum;"

The Articles of the Dublin Convention give effect to the intent stated in the Preamble and article 3 provides:

    "1. Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.

    2. That application shall be examined by a single Member State, which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in articles 4 to 8 shall apply in the order in which they appear.

    3. That application shall be examined by that State in accordance with its national laws and its international obligations."

    Sections 2 and 3 of the Asylum and Immigration Act 1996 were enacted in the light of the Dublin Convention. Section 2 provides:

    "(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc.) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if—

    (a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled;

    (b) the certificate has not been set aside on an appeal under section 3 below; and

    (c) except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.

    (2) The conditions are—

    (a) that the person is not a national or citizen of the country or territory to which he is to be sent;

    (b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

    (c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.

    (3) This subsection applies to any country or territory which is or forms part of a member state, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument.

    (7) In this section 'claim for asylum' and 'the Convention' have the same meanings as in the 1993 Act."

Section 3 gives a right of appeal against a certificate issued under section 2(1), but section 3(2) provides:

    "A person who has been, or is to be, sent to a country or territory to which section 2(3) above applies shall not be entitled to bring or pursue an appeal under this section so long as he is in the United Kingdom."

    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 [1999] 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 [1999] 3 W.L.R. 1274, is set out at 1295-1296:

    "Because the scope of the definition of 'refugee' in article 1A(2) is a matter of law, it is in our judgment not appropriate to investigate the reasons of history or culture why some states - here, Germany and France - adopt one construction and the courts of the United Kingdom (and other signatory states) adopt another. This involves no disrespect to the French and German jurisdictions. In Iyadurai's case [1998] Imm. A.R. 470, 473 Lord Woolf M.R. (in a passage we have already set out), citing Kerrouche's case [1997] Imm. A.R. 610, referred to 'the absence of some supranational court which is capable of giving authoritative interpretations to the provisions of the Convention and Protocol which are binding on the signatory countries.' That being the position, if the Secretary of State gives a certificate in any case where the scope of article 1A(2) is in question, the courts of this country have no choice but to arrive at an authoritative interpretation themselves. If they did not do so, they would abrogate their elementary responsibility to supervise the Secretary of State's decisions for error of law: their duty here is the same as where the Secretary of State's appreciation of purely municipal provisions is in question. It is true that article 38 of the Convention provides for references to be made to the International Court of Justice at the Hague. We understand that no such reference has ever been made. In any event it seems clear that (in contrast to the position under article 234, formerly 177 of the E.C. Treaty (O.J. 1992 C. 224, p. 6) in relation to the law of the European Union) the court has no power itself to refer, whether at the request of a party or of its own motion. In these circumstances our courts are bound to find the true interpretation of article 1A(2) for themselves, and to apply it in the exercise of their supervisory jurisdiction of decisions arrived at by the Secretary of State touching section 2(2)(c) of the Act of 1996.

    "From all these considerations it follows that the issue we must decide is whether or not as a matter of law, the scope of article 1A(2) extends to persons who fear persecution by non-state agents in circumstances where the state is not complicit in the persecution, whether because it is unwilling or unable (including instances where no effective state authority exists) to afford protection. We entertain no doubt but that such persons, whose case is established on the facts, are entitled to the Convention's protection. This seems to us to follow 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;" and this involves no technical or over-legalistic reading of the provision. This interpretation is supported by the approach taken in paragraph 65 of the U.N.H.C.R. Handbook. We have described the Handbook's genesis, to which we attach some importance. While the Handbook is not by any means itself a source of law, many signatory states have accepted the guidance which on their behalf the U.N.H.C.R. was asked to provide, and in those circumstances it constitutes, in our judgment, good evidence of what has come to be international practice within article 31(3)(b) of the Vienna Convention."

And at p. 1296, after referring to the 1967 Protocol to the Geneva Convention, the court states:

    "It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world. In our view the Convention has to be regarded as a living instrument: just as, by the Strasbourg jurisprudence, the European Convention on Human Rights is so regarded. Looked at in this light, the Geneva Convention is apt unequivocally to offer protection against non-state agent persecution, where for whatever cause the state is unwilling or unable to offer protection itself."

 
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