House of Lords
|Session 2001- 02
Publications on the Internet|
|Judgments - Regina v Secretary of State For The Home Department Ex p Thangarasa and Regina v Secretary of State for the Home Department, Ex p Yogathas
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Hope of Craighead Lord Hutton Lord Millett Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
EX PARTE THANGARASA (APPELLANT)
AND ONE OTHER ACTION
SECRETARY OF STATE FOR THE HOME DEPARTMENT
EX PARTE YOGATHAS (FC)
AND ONE OTHER ACTION (CONJOINED APPEALS)
ON 17 OCTOBER 2002
 UKHL 36
LORD BINGHAM OF CORNHILL
1. The appellants (Mr Yogathas and Mr Thangarasa) are young Tamils from Sri Lanka. Both have applied for asylum in this country. Both challenge decisions by the Home Secretary which, if implemented, would lead to their removal to Germany in order that their claims for asylum may be resolved there. They resist such removal because they contend that their claims would not be as fully and favourably considered in Germany as they would here. While the thrust of their respective cases is thus similar, the legal basis is different because (for reasons of timing) they are subject to different statutory regimes in this country.
2. In Mr Yogathas' case the crucial question is whether the Home Secretary acted lawfully in certifying, as he did, under section 2(2)(c) of the Asylum and Immigration Act 1996 that the government of Germany would not send Mr Yogathas to Sri Lanka otherwise than in accordance with the 1951 Geneva Convention Relating to the Status of Refugees as amended by the 1967 Protocol to the Convention. In Mr Thangarasa's case the crucial question is whether the Home Secretary acted lawfully in certifying as manifestly unfounded, as he did under section 72(2)(a) of the Immigration and Asylum Act 1999, Mr Thangarasa's allegation that the Home Secretary, in making his removal decision, had acted in violation of Mr Thangarasa's human rights. These challenges to the Home Secretary's certificates were rejected at first instance by Richards J and Collins J respectively, and also by the Court of Appeal (Chadwick and Laws LJJ and Sir Anthony Evans), in a judgment in the two conjoined appeals given by Laws LJ.
3. Since the facts giving rise to these appeals, and the relevant legislation, are summarised in the opinions of my noble and learned friends Lord Hope of Craighead and Lord Scott of Foscote, whose summaries I gratefully adopt and need not repeat, I can go straight to the issues in the two appeals, which must be considered separately.
4. This appellant contends that if he is removed to Germany his application for asylum will be prejudiced, as compared with its treatment in the United Kingdom, for four main reasons:
5. The House had occasion to consider the first of these contentions in R v Secretary of State for the Home Department Ex parte Adan; R v Secretary of State for the Home Department Ex parte Aitseguer  2 AC 477 and found that a difference of interpretation existed. Since there could in principle be only one true interpretation of the Geneva Convention (page 516), since the true interpretation was that upheld by the House in Adan v Secretary of State for the Home Department  1 AC 293 (page 519F), since the true interpretation was not that accepted in Germany and France (page 508G), and since it was accepted that this difference of interpretation would probably lead to the return of the applicants to countries where they might face torture and death (page 512G), the House upheld the Court of Appeal's decision quashing the Home Secretary's certificates under section 2(2)(c) of the 1996 Act. Although a question was raised whether there might be alternative forms of protection available to protect the applicants in Germany and France, and this question was not ruled to be irrelevant, it was not discussed or resolved (pages 512G, 514H, 520F). In the present case this aspect was fully considered, both by the judge (particularly in paragraphs 14-19 of his judgment) and by the Court of Appeal (particularly in paragraphs 20-24). The conclusion reached was that even if, because of the different interpretation of the convention in Germany, the appellant would not be granted asylum under article 16a of the Basic Law and section 51 of the Aliens Act, he would be protected under section 53(6) of the Aliens Act.
6. The appellant's second contention relates to what has been called, not very happily, "internal flight". I agree with Lord Hope and Lord Scott that "internal relocation" is a better expression because it focuses attention on the real question, which is whether a person liable to persecution in one part of the country would be adequately protected by the state if relocated in another part to which he would in practice be returned. The judge concluded on the evidence that the German authorities would consider this aspect (paragraphs 30-36 of his judgment) and that while there were differences between the tests applied in Germany and the UK, the German test being more stringent than the British (paragraph 50(i)), the differences were not so great as to compel the conclusion that removal of the appellant to Germany would give rise to a real risk that he would be sent back to Sri Lanka or elsewhere otherwise than in accordance with the convention (paragraph 58). The Court of Appeal agreed with this conclusion (paragraphs 51-55).
7. The appellant's third contention was not accepted by the judge (paragraph 17) or the Court of Appeal (paragraphs 20-21): the thrust of the convention was to protect an applicant against the risk of return to a place of potential persecution, not to protect all his other economic, social and civil rights.
8. The appellant's fourth contention was rejected by the judge (paragraphs 21-23) and the Court of Appeal (paragraphs 25-29) on the ground that the evidence showed a general similarity of approach by the authorities in both countries.
9. Nothing in the careful and detailed judgments of the judge and the Court of Appeal throws doubt on the fundamental principle enunciated by the House in R v Secretary of State for the Home Department, Ex p Bugdaycay  AC 514 at 531F:
The same is true of a decision which may expose the applicant to the risk of torture or serious ill-treatment. But the judge and the Court of Appeal were in my opinion right to give weight, consistently with that fundamental principle, to two important considerations. The first is that the Home Secretary and the courts should not readily infer that a friendly sovereign state which is party to the Geneva Convention will not perform the obligations it has solemnly undertaken. This consideration does not absolve the Home Secretary from his duty to inform himself of the facts and monitor the decisions made by a third country in order to satisfy himself that the third country will not send the applicant to another country otherwise than in accordance with the convention. Sometimes, as notably in Adan and Aitseguer  2 AC 477, he will be unable properly to satisfy himself. But the humane objective of the convention is to establish an orderly and internationally-agreed regime for handling asylum applications and that objective is liable to be defeated if anything other than significant differences between the law and practice of different countries are allowed to prevent the return of an applicant to the member state in which asylum was, or could have been, first claimed. The second consideration is that the convention is directed to a very important but very simple and very practical end, preventing the return of applicants to places where they will or may suffer persecution. Legal niceties and refinements should not be allowed to obstruct that purpose. It can never, save in extreme circumstances, be appropriate to compare an applicant's living conditions in different countries if, in each of them, he will be safe from persecution or the risk of it.
10. Despite the sustained argument of Mr Gill QC on behalf of this appellant, I am not persuaded that the judge or the Court of Appeal erred in their legal reasoning or in their assessment of the evidence before them. For these reasons I shared the conclusion, announced at the end of the hearing, that this appeal should be dismissed.
11. In challenging the Home Secretary's certificate given under section 72(2)(a) of the 1999 Act, this appellant faces certain initial problems, two factual and two legal. The first factual problem is that after leaving the north of Sri Lanka the appellant spent about a year in Colombo, which weakens his claim that he will be subject to ill-treatment if returned to Colombo. The second is that he was granted asylum in Germany in 1992, and lived in that country as a refugee for some seven years, which weakens his contention that his claim to asylum will not be properly considered by the German authorities. The first legal problem is that Parliament has enacted, in section 11(1)(b) of the 1999 Act, a statutory presumption that a member state (such as Germany) is to be regarded as a place from which he will not be sent to Sri Lanka otherwise than in accordance with the Geneva Convention. Thus the argument which succeeded in Adan and Aitseguer  2 AC 477 is effectively blocked. But this does not deprive the subject or proposed subject of a removal order of all redress. The possibility of a challenge on human rights grounds is preserved by section 65 of the 1999 Act, as was no doubt necessary if that Act was to be compatible with the obligations of the United Kingdom under the European Convention on Human Rights. The breach of human rights must, in this case, relate to the return (or the decision to return) the appellant to Germany. Since it is not suggested that the appellant will be at risk of ill-treatment in Germany, he must in practice show that there are substantial grounds for believing that if he is sent back to Germany there is a real risk that he will be sent back to Sri Lanka in circumstances giving rise to a real risk of a breach of article 3 of the European Convention.
12. At this point the appellant confronts his second and most formidable legal problem: the permissibility, under the European Convention, of removing from the United Kingdom to Germany a Tamil asylum applicant seeking to resist return to Sri Lanka was the very issue in the European Court of Human Rights in TI v United Kingdom  INLR 211, and it was decided against the applicant. The proposed removal was governed by the 1996 and not the 1999 Act, but the issue before the court was essentially the same as in the present case. The complaints of the applicant, summarised in the judgment of the court at pages 224-225, are similar to those of this appellant. He complained that, because of the view taken in Germany of acts by non-state agents, there was a gap in the protection available to him in Germany, which could lead to a real risk of ill-treatment if he were returned to Sri Lanka. The court received a number of reports and also received submissions by the applicant, the governments of the United Kingdom and Germany and the United Nations High Commissioner for Refugees. In the result, the court doubted whether the applicant's claim to asylum in Germany would be granted and doubted whether his claim under section 53(4) of the Aliens Act would be successful (page 230). But it concluded overall that the gap in the protection available to the applicant was more apparent than real (page 230) and concluded, having regard to the practical application of section 53(6), that no real risk had been established that Germany would expel the applicant to Sri Lanka in breach of article 3 (page 231). The German government accepted that if all else failed the applicant could apply to the European Court, and the government would scrupulously comply with any request by that court to suspend execution of a deportation order (page 227).
13. The European Court's decision in TI was available to the Home Secretary when he decided to direct the removal of the appellant and when he gave his certificate under section 72(2)(a). Unless there were grounds of substance for distinguishing that authority it justified his decision. Neither the judge nor the Court of Appeal found such grounds to distinguish it, and Mr Gill has not persuaded me that they were wrong.
14. Before certifying as "manifestly unfounded" an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail.
15. For these reasons I shared the conclusion, announced at the end of the hearing, that this appeal also should be dismissed.
16. In both appeals I am in general agreement with the reasons given by Lord Hope, Lord Hutton and Lord Scott, but I share the reservation expressed by Lord Hutton in paragraph 75 of his opinion.
LORD HOPE OF CRAIGHEAD
17. The appellants are both Tamil asylum seekers from Sri Lanka. The first country in the European Union which they entered was Germany, where they both applied for asylum. The treatment which their cases received initially in Germany was different as they entered that country in different years. The years when they arrived in the United Kingdom and sought asylum here are also different, with the result that the legislation under which their cases have been dealt with is not the same. Although there is some common ground between them, it is important to keep in mind these differences. My noble and learned friend Lord Scott of Foscote has set out the facts, and I gratefully adopt his account of them. For convenience I wish to add only this brief summary.
18. Yogathas entered Germany in March 1999. His application for asylum was refused and an appeal against that decision was unsuccessful. In November 1999 he came to the United Kingdom, where he again applied for asylum. The legislation which relates to his case is to be found in section 2 of the Asylum and Immigration Act 1996 ("the 1996 Act"). This section, which has now been repealed, dealt with the removal of an asylum seeker to a safe third country. That could be done where the Secretary of State certified that in his opinion the three conditions mentioned in section 2(2) were fulfilled: non-nationality, safety and non-refoulement. The non-refoulement condition in section 2(2)(c) was designed to meet the United Kingdom's convention obligations under article 33 of the Convention relating to the Status of Refugees of 28 July 1951 ("the Geneva Convention"), as amended by the New York Protocol of 31 January 1967. It required him to certify that the government of the third country or territory would not send the applicant to another country or territory otherwise than in accordance with the Convention. Rule 345 of the Immigration Rules 1994 (HC 395) provides that , in a case where the Secretary of State is satisfied that the conditions set out in section 2(2) are fulfilled, he will normally refuse the asylum application and issue a certificate under section 2(1) of the 1996 Act without substantive consideration of the applicant's claim to refugee status. That is what happened in Yogathas's case. On 20 July 2000 the Secretary of State informed him that Germany had accepted responsibility for his case under the Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Communities (1997) (Cm 3806) ("the Dublin Convention"), which was entered into on 15 June 1990 and came into force on 1 September 1997. He also certified under section 2(1) of the 1996 Act that in his opinion the conditions set out in section 2(2) were fulfilled in his case. The question is whether, having regard to the condition about non-refoulement, the Secretary of State was entitled to issue that certificate.
19. Thangarasa entered Germany in 1992. His application for asylum was granted on appeal, but in 1999 it was decided that as he could be returned to Colombo he was no longer to be regarded as a refugee. He arrived in the United Kingdom in November 2000. The legislation that applies to his case is to be found in the Immigration and Asylum Act 1999 ("the 1999 Act"), the relevant parts of which came into force on 2 October 2000. Section 11(1) of that Act prevents the removal of an asylum seeker to another Member State under the Dublin Convention from being challenged on the basis that the other Member State does not meet the requirements of the Geneva Convention. Section 11(2) provides a person may be removed from the United Kingdom without a substantive consideration of his claim for asylum if the Secretary of State certifies that a Member State of the EU has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim. The standing arrangements to which this subsection refers are currently those set out in the Dublin Convention. A right of appeal against the Secretary of State's certificate is provided by section 71 on the ground that the conditions applicable to it were not satisfied when it was issued. That right of appeal has not been invoked in this case. It cannot be exercised while the person is in this country: section 72(2)(b). In any event the conditions are of such a nature that cases worth taking to appeal on this ground are likely to be very rare. More important is the right of appeal to an adjudicator under section 65 on the ground that the decision as to the claimant's entitlement to remain in the United Kingdom was taken in breach of his human rights. But this right of appeal is excluded if the Secretary of State certifies under section 72(2)(a) that the allegation that a person has acted in breach of the claimant's human rights is manifestly unfounded. The Secretary of State has so certified in this case. The question is whether, having regard to article 3 of the ECHR, he was entitled to issue that certificate.
20. It can be seen from this summary that the certificates which are under challenge in each case are different. In Yogathas's case the decision which is under challenge is the decision to remove him under the Dublin Convention to Germany. The question to which the Secretary of State had to address his mind in his case was whether Germany could properly be regarded as a safe third country. In Thangarasa's case two decisions were taken. The first was the decision to remove him under the Dublin Convention to Germany. But the effect of section 11(1) of the 1999 Act is that this decision cannot be challenged on Geneva Convention grounds, so the question whether Germany can properly be regarded as a safe third country does not arise. The second decision was that the allegation that the decision to remove him to Germany was in breach of his human rights grounds was manifestly unfounded. It is the second decision, relating to issue of human rights, which is under challenge in his case.
21. It may help to set the scene for an examination of the application of our own domestic legislation to these two cases if I were to outline the various international instruments which provide the background to these enactments.
22. The Geneva Convention, which is sometimes (and perhaps more accurately) referred to as "the Refugee Convention", was adopted in recognition of the profound social and humanitarian nature of the problem of refugees resulting from the Second World War. Its aim was to provide effective measures to deal with the problem of refugees as defined by article 1A(2), to prevent it becoming a cause of tension between States and to assure refugees the widest possible exercise of the fundamental rights and freedoms affirmed by the Universal Declaration of Human Rights of 1948. But there were some significant gaps. It did not lay down any rules as to which State ought to provide protection, nor did it attempt to set out the procedures to be adopted by the Contracting States for granting and withdrawing refugee status. It appears to have been assumed that most refugees would be protected in neighbouring countries in the same region.
23. But the Geneva Convention did contain a prohibition against the expulsion or return ("refoulement") of a refugee. This is now firmly established as one of the fundamental principles of international refugee and asylum law. Article 33 states:
24. Among the rights and freedoms declared by the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR") are the right to life declared by article 2, the right not to be subjected to torture or to inhuman or degrading treatment or punishment declared by article 3 and the right to liberty and security of the person declared by article 5. All the Member States in the European Union are signatories to the ECHR. They are obliged by article 1 to secure to everyone within their jurisdiction the rights and freedoms which it defines. It follows that every person seeking asylum in any of the Member States of the European Union is entitled to the protection of the ECHR. He is entitled to an effective remedy before a national authority if any of his rights and freedoms as set forth in it are violated: article 13.
25. If an effective remedy is not afforded to the asylum seeker in the domestic courts, he has the right of individual petition to the European Court of Human Rights. What this may involve is illustrated by Vilvarajah v United Kingdom  EHRR 248. The European Court observed in that case at p 286, para 102 that the Contracting States had the right, as a matter of well-established international law and subject to their treaty obligations including article 3 of the ECHR, to control the entry, residence and expulsion of aliens, and that the right to political asylum was not contained in the Convention or its Protocols. On the other hand, as was noted in the same case in para 103, the expulsion of an asylum seeker by a Contracting State may give rise to an issue under article 3 where substantial grounds are shown for believing that the person concerned faces a real risk of being subjected to torture or degrading treatment or punishment in the country to which he is returned: Soering v United Kingdom (1989) 11 EHRR 439, 467-468, para 88; Cruz Varas v Sweden (1992) 14 EHRR 1, 33-34, paras 69-70.
26. By the end of the 1980s the Member States of the European Union were faced with a rising number of applications for asylum. The burden of dealing with these applications, many of which turned out after examination to be unfounded, was causing increasing concern to the national authorities. Among other problems was the fact that the large number of applications which were unfounded was delaying the recognition of refugees who were in genuine need of protection. In the United Kingdom applications for asylum, which had been in the low hundreds annually in the early 1970s, were already in the low thousands annually by the 1980s and were increasing year by year. The whole issue was also becoming increasingly politically sensitive, and various ad hoc arrangements were entered into with a view to increasing co-operation between the governments of the Member States in immigration and asylum law: see Elspeth Guild, Towards an European asylum law: developments in the European Community  Imm and Nat L & P 88.
27. The creation of an internal market in which people could move freely between member states created a further problem. It led to a concern that asylum seekers might seek to abuse the system by lodging applications for asylum in two or more member states. The Dublin Convention sought to address this problem by establishing a framework to ensure that a claim for asylum was heard only once in the EU. It established the principle that the State through which the applicant for asylum entered the EU is responsible for dealing with the application, even if it is lodged in another Member State. Under this system a State is responsible if it is the first point of entry into the EU of an asylum seeker who crossed the border into a Member state from a non-Member State without complying with its entry requirements