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

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    28. An important step towards the harmonisation of procedures was taken at a meeting in London on 30 November and 1 December 1992 of ministers of the Member States. The context for that meeting was provided by the Treaty on European Union which had been signed in Maastricht on 7 February 1992. Article K.1 in Title VI of the Maastricht Treaty provided that, for the purposes of achieving the objectives of the Union, Member states were to regard various areas in the fields of justice and home affairs as matters of common interest. These included asylum policy. At their meeting the ministers approved a resolution on manifestly unfounded applications for asylum: Council Press Release 10518/92; [1993] Imm and Nat L & P 31: ("the 1992 Resolution").

    29. The 1992 Resolution, which was endorsed at a meeting of the European Council in Edinburgh in December 1992, was one of the products of an ad hoc intergovernmental programme on asylum policy which had been established in 1986 under the UK Presidency of the Community: Guild, pp 89-90. The preamble stated stated that the Member States were determined, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the Geneva Convention, and it reaffirmed their commitment to the Dublin Convention. It also stated that the ministers were aware that a rising number of applicants for asylum in the Member States were not in genuine need of protection within the Member States within the terms of the Geneva Convention, and that they were concerned that such manifestly unfounded applications were overloading asylum determination procedures, delaying the recognition of refugees in genuine need of protection and jeopardising the integrity of the institution of asylum.

    30. In paragraph 1(a) of the main text, under the heading "Manifestly unfounded applications", the 1992 Resolution declared:

    "An application for asylum shall be regarded as manifestly unfounded because it clearly raises no substantive issue under the Geneva Convention and the New York Protocol for one of the following reasons:


    there is clearly no substance to the applicant's claim to fear persecution in his own country (paragraphs 6 to 8); or


    the claim is based on deliberate deception or is an abuse of asylum procedures (paragraphs 9 and 10)."

In paragraph 2 it was stated that Member States might include applications which fell within paragraph 1 within an accelerated procedure which need not include full examination at every level and that they might also operate admissibility procedures under which applications might be rejected very quickly on objective grounds. Paragraphs 6 to 8 set out various circumstances in which Member States might consider that the terms of the application raised no question of refugee status within the terms of the Geneva Convention. In paragraph 12 it was stated that Ministers agreed to seek to ensure that their national laws were adapted, if need be, to incorporate the principles of the Resolution at the latest by 1 January 1995.

    31. The 1992 Resolution had no legal force, as it was not reproduced in a Community instrument which was binding on Member States under article 189 of the EC Treaty (now article 249 EC). Nevertheless it was an important declaration of policy, and it forms part of the background against which the legislation with which these appeals are concerned was enacted.

"Manifestly unfounded"

    32. The use of the expression "manifestly unfounded" in this context appears to have its origin in the work of the ad hoc intergovernmental programme which was endorsed by the 1992 Resolution. It was, of course, already familiar in the context of human rights, as article 35.3 of the ECHR provides that applications to the European Court of Human Rights which are manifestly ill-founded may be declared inadmissible. It is clear from the way in which the expression was used in the 1992 Resolution that it was intended to describe those applications which, because they were clearly without substance, were suitable for treatment by means of an accelerated procedure without compromising the obligations of Member States under the Geneva Convention.

    33. This expression was not used in our own domestic legislation until it made its first appearance in section 72(2)(a) of the 1999 Act. It is used here for a purpose which is similar to that envisaged by the 1992 Resolution. The intention of the legislation which was introduced by the 1999 Act is that the removal of an asylum seeker to another Member State under the Dublin Convention should be effected without delay. Substantive consideration is to be given to his application for asylum in the other Member State and not in this country. Provision is made, in recognition of the obligations of the United Kingdom under the ECHR, for an appeal on human rights grounds. The purpose of the legislation would be frustrated if the asylum seeker could ensure that he remained in this country pending a full review on the merits of an allegation of a breach of his human rights which was clearly without substance.

    34. It is for this reason that the process which is envisaged is best described as a screening process, as my noble and learned friend Lord Bingham of Cornhill has observed. Nevertheless the test which section 72(2)(a) of the 1999 Act has laid down recognises the level of scrutiny that is required. By adopting the language of the international instruments Parliament has made it clear that the issue as to whether the allegation is manifestly unfounded must be approached in a way that gives full weight to the United Kingdom's obligations under the ECHR. The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is so clearly without substance that the appeal would be bound to fail.

The Dublin Convention

    35. Although the two cases are different, at the heart of each of them is the Dublin Convention. Its purpose was to achieve an orderly system for dealing with asylum cases in the European Union. But it too is not to be regarded as having relieved Member States of their obligations under the Geneva Convention and the ECHR. Article 63 of the Consolidated Version of the Treaty establishing the European Community provides that the Council shall adopt various measures on asylum in accordance with the Geneva Convention. These are to include criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the member states. By article 2 of the Dublin Convention the Member States reaffirmed their obligations under the Geneva Convention, as amended by the New York Protocol, with no geographic restriction as to the scope of those instruments and their commitment to co-operating with the services of the United Nations High Commissioner for Refugees in applying those instruments.

    36. It is worth noting that article 18 of the EU Charter of Fundamental Rights, which deals with the right to asylum, adopts the same approach. It provides:

    "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community."

The Charter also restates the principle of non-refoulement, respect for which is essential if the guarantees provided by the Geneva Convention are to be preserved. Article 19(2) provides, in language which incorporates the wording of article 3 of the ECHR:

    "No one shall be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

    37. The Dublin Convention is not without its critics. It has given rise to various problems in practice: Elspeth Guild, Asylum and refugees in the EU. A practitioner's view of developments (European Information Service, Issue 215, December 2000). The principle that an asylum seeker should only be able to have his case considered in one Member State within the EU has not been questioned. But difficulty has been experienced in identifying the State which is to have the responsibility of dealing with the application. This in turn has made it more difficult for the authorities to enforce the return of asylum seekers to other Member States in the EU. These are the problems which the legislation at issue in these appeals was designed to address.

The 1996 Act: Yogathas's case

    38. Yogathas's complaint is that his removal to Germany would be in breach of the principle of non-refoulement. He claims that he has a well-founded fear of persecution by both the state authorities and the LTTE if he were to be returned to Sri Lanka. His contention is that the German law relating to persecution differs from that of the United Kingdom, and that his claim for asylum will not be considered in accordance with the Geneva Convention if he is returned to that country.

    39. It is not disputed that there is a divergence of state practice as to the interpretation of the Convention: see R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477, 512 per Lord Steyn. The majority of states, including the United Kingdom, do not limit persecution to conduct which can be attributed to a state. A minority of states, including Germany, do so limit it, with the result that a well founded fear of persecution by non-state agents is not regarded by them as engaging the Convention. The German approach was described by the European Court in TI v United Kingdom [2000] INLR 211, 222:

    "According to the constant case-law of the German Constitutional Court, recognition as a political refugee requires a risk of persecution emanating from a State- or quasi-State-like authority. Persecution by private organisations or persons qualifies only if it can be attributed to the State in that the State supports or passively tolerates the persecution by private groups or exceptionally if the State does not provide adequate protection due to its inability to act as a consequence of existing political or social structures."

    40. The Secretary of State accepts that, as a matter of legal theory, a person who feared persecution from the LTTE in the north of Sri Lanka could be returned to that country by the German authorities on the basis that such a fear could not be attributed to the state. He relies instead on German practice in relation to the issue of what is known as "internal flight" (perhaps better described as "internal relocation": see Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449) - that is to say, whether the home state can afford a safe haven or an alternative place to which the applicant can go and stay without having a well-founded fear of persecution for a Convention reason.

    41. The parameters within which the argument must be considered are these. The invariable practice of the German authorities is to return Sri Lankan Tamils to Colombo, not to the north where they would be most obviously at risk of persecution by the LTTE. Yogathas claims that this is of no help to him because he will be at risk in Colombo of ill-treatment by the army or by the police, of which he says he has a well founded fear. He also claims that conditions in Colombo will be unduly harsh for him because he will be at a disadvantage in relation to his medical, housing and social needs. He says that this is not an alternative place to stay of which he can reasonably be expected to avail himself.

    42. Under German law anybody persecuted on political grounds has a right of asylum: article 16a(1) of the Basic Law. Section 51 of the Aliens Act provides that a foreigner cannot be deported to a State in which his life or his liberty is threatened on grounds of his race, religion, nationality, his membership of a certain social group or because of his political convictions. But decisions of the German Constitutional Court have established that for these provisions to apply it must be shown that there is a risk of persecution which can be attributed to the State. If this requirement is not met, as is likely to be the position in this case, the next question is whether the applicant's deportation would be unlawful under section 53(4) of the Aliens Act. This enables an applicant to escape deportation if he faces a serious risk of treatment in the country to which he is to be removed which is contrary to article 3 of the ECHR. But the German Federal Administrative Court, declining to follow the decision of the European Court in Ahmed v Austria [1998] INLR 65, has held that here too it must be shown that there is a serious risk of inhuman or degrading treatment or punishment by the State or a State-like authority. This leaves section 53(6) of the Aliens Act, which provides that deportation of a foreigner to another State can be avoided if there exists for that foreigner "a considerable definite danger for body, life or liberty in that state."

    43. The critical question is therefore whether in applying section 53(6) of the Aliens Act to his case the German authorities will, as Yogathas says, ignore his fear of persecution by non-state agents when considering the availability of internal relocation or whether, as the Secretary of State says, they will properly take account of it.

    44. Mr Gill QC for Yogathas accepted that the question of internal relocation was capable of being considered under section 53(6) of the Aliens Act. But he maintained that the German authorities would decline to attribute to the State persecution which resulted from isolated acts by the police and other officials in excess of their functions. He also said that they applied a much harsher standard to this issue than was appropriate, as their approach did not properly reflect the test to be applied in considering whether there was an internal relocation alternative. There was therefore a real risk of a different outcome in Germany from that which could be expected if his claim were to be dealt with in the United Kingdom.

    45. Both Richards J and the Court of Appeal rejected these arguments, and in my opinion they were right to do so for the reasons which they gave. I would take as my starting point the summary of German practice which is contained in TI v United Kingdom [2000] INLR 211 at pp 221-3. After describing the preconditions which must be met for the application of sections 51 and 53(4) of the Aliens Act, the European Court said this at p 222:

    "If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. This applies to concrete individual danger resulting from either State or private action. It does not require an intentional act, intervention or State measure and covers risks for life resulting from adverse living conditions, lack of necessary medical treatment etc (FAC 9 September 1997, InfAusIR 1998, 125)…

    In the first 6 months of 1999, [s 53(6)] was applied to 24 Sri Lankan nationals in respect of serious individual risks of ill-treatment which could not be attributed to the Sri Lankan State. This included the case of a Tamil whose scars placed him in a real danger of being apprehended by the security forces and submitted to renewed torture as a person suspected of LTTE involvement (Dresden Administrative Court decision of 16 November 1998, 5 K 30493/96)."

    46. I agree with Richards J, at paragraph 23 of his judgment, that this summary does not reveal any material difference of approach from that in the United Kingdom. In Horvath v Secretary of State for the Home Department [2001] 1 AC 489 it was held that, in order to satisfy the fear test in a non-state agent case, the applicant must be able to show that the persecution which he fears consists of acts of violence or ill-treatment against which the State is unable or unwilling to provide protection according to a practical standard which takes proper account of the duty which it owes to its own nationals. The issue to which the Secretary of State would have had to direct his mind if he were dealing with the claim in this country is essentially a practical one, as to the outcome which was to be expected if the appellant were to be returned to his home State. The words "concrete individual danger", irrespective of whether it results from State or private action, which the German Federal Administrative Court has used reflect this approach. So too does the recognition by the Dresden Administrative Court that risks resulting from adverse living conditions and other such factors must be taken into account.

    47. As Richards J said in paragraph 15, the focus in section 2(2)(c) of the 1996 Act is on the end result rather than the precise procedures by which the result was achieved. The question is whether the government of the third country "would not" send the person to another country or territory otherwise than in accordance with the Geneva Convention. The concern is essentially a practical one rather than one which is theoretical. In R v Secretary of State for the Home Department, ex p Canbolat [1997] 1 WLR 1569, 1577 Lord Woolf MR said that the statutory test must be subject to the implication that it is permissible to grant a certificate when there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. The European Court's summary suggests that the Secretary of State was entitled to conclude that, as matter of practical reality, there was no real risk that the German authorities would send Yogathas back to Sri Lanka in breach of the Geneva Convention.

    48. But the matter does not end there. The Secretary of State was also able to show that he based his decision on a state of knowledge resulting from his own inquiries as to the practice in Germany and from his experience of constantly monitoring the performance by Member States of their obligations in similar cases. Witness statements were lodged by one of his officials, Ian Taylor, who was able to say from his own knowledge that where the risk of persecution is alleged to come from non-state agents the German authorities consider, as a matter of practice, whether there is a viable internal relocation alternative. After conducting further inquiries in Germany he said that he had obtained confirmation from the German authorities that there was normally no expulsion of rejected asylum seekers to Sri Lanka without considering the availability of internal relocation, that he had been told by an official of the Federal Office for the Recognition of Foreign Refugees that he was aware of no case where this had happened and that the information which he had obtained tended to confirm that in practice an asylum seeker would not be returned to Colombo without consideration of internal relocation whatever the source of persecution alleged.

    49. For these reasons I would hold that it has not been shown that the Secretary of State was not entitled to issue a certificate under section 2(2) in Yogathas's case. The situation with which Yogathas would be faced in this case under section 53(6) of the Aliens Act is, of course, entirely different from that which arose in R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477. It was common ground in that case that, if the appellants were to be sent back to the countries from which they had entered the United Kingdom, they would probably be sent back to their countries of origin. This was simply because the conduct which gave rise to the fear of persecution would not be regarded as conduct for which the state was accountable. The House did not consider the question whether other forms of protection than the grant of asylum were available in the third countries.

The 1999 Act: Thangarasa's case

    50. In response to the decision of the Secretary of State under section 11(2) of the 1999 Act that he should be removed from the United Kingdom to Germany, Thangarasa claimed that his removal would be a breach of his human rights. The Secretary of State certified under section 72(2)(a) that this allegation was manifestly unfounded. The question is whether he was entitled so to certify.

    51. Guidance as to how the issue raised by article 3 of the ECHR should be approached has been provided by the European Court. In Cruz Varas v Sweden (1991) 14 EHRR 1, 37 para 82 it asked itself whether substantial grounds had been shown for believing that the person's expulsion would expose him to a real risk of being subjected to inhuman or degrading treatment or punishment on his return to his home country, and in paragraph 83 it set out the principles which were relevant to the assessment of the risk of ill-treatment. In Vilvarajah v United Kingdom [1991] 14 EHRR 248, 289, para 108 the Court said:

    "The Court's examination of the existence of a real risk of ill-treatment in breach of article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It follows from the above principles that the examination of this issue in the present case must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka in the light of the general situation there in February 1988 as well as on their personal circumstances."

The question for the Secretary of State was whether, bearing in mind these principles, the allegation by Thangarasa that there was a breach of his human rights was so clearly without substance that it was bound to fail.

    52. It is hard to fault the decision of the Secretary of State to issue a certificate under section 72(2)(a) on this ground in the light of the decision of the European Court in TI v United Kingdom [2000] INLR 211 that the application which was made in that case was inadmissible. TI's case was not dealt with under the 1999 Act, but the issues which arose there are directly relevant to Thangarasa's case. TI too was a Tamil national of Sri Lanka. He arrived in the United Kingdom having previously been refused asylum in Germany. The Secretary of State issued a certificate under section 2 of the 1996 Act directing that he be returned to Germany. TI's argument was that he would be unable to obtain a rehearing of his claim to asylum in Germany, that he was at a real risk of torture and ill-treatment if he were to be returned to Sri Lanka and that his removal to Germany in these circumstances would amount to a violation of his rights under article 3 of the ECHR. His complaint was rejected under article 35(3) and (4) of the Convention as manifestly ill-founded by the European Court. The only material difference between Thangarasa's case and that of TI is that TI disclosed the grounds on which his initial application for asylum had been refused which included an adverse finding as to his credibility, whereas Thangarasa has not done so.

    53. The European Court found at pp 230-231 that there was considerable doubt that TI would be granted a follow-up asylum hearing on his return to Germany or that his second claim to asylum would be granted. It also held that there was little likelihood of his claims under article 53(4) of the Aliens Act being successful. But it held that this apparent gap in protection resulting from the German approach to non-State agent risk was met, "at least to some extent", by the application by the German authorities of section 53(6). The critical passage in its judgment is at p 231, where the Court said:

    "It is true that the Government have not provided any example of section 53(6) being applied to a failed asylum-seeker in a second asylum procedure. The Court acknowledges that the previous court decision heavily impugning his credibility is a factor which would also weigh against a claim for protection in this context. However, on the basis of the assurances given by the German Government concerning its domestic law and practice, the court is satisfied that the applicant's claims, if accepted by the authorities, could fall within the scope of section 53(6) and attract its protection. While it may be that on any re-examination of the applicant's case the German authorities might still reject it, this is largely a matter of speculation and conjecture. There is, furthermore, no basis on which the Court could assume in this case that Germany would fail to fulfil its obligations under article 3 of the [Convention] to provide the applicant with protection against removal to Sri Lanka if he put forward substantial grounds that he faces a risk of torture and ill-treatment in that country. To the extent, therefore, that there is the possibility of such a removal, it has not been shown in the circumstances of this case to be sufficiently concrete or determinate."

    54. The Court then added this further comment at p 231:

    "Finally, as regards the applicant's arguments concerning the high burden of proof placed on asylum-seekers in Germany, the court is not persuaded that this has been substantiated as preventing meritorious claims in practice. It notes that this matter was considered by the English Court of Appeal and rejected. The record of Germany in granting large numbers of asylum claims gives an indication that the threshold being applied in practice is not excessively high."

    55. The fact that the European Court came to that conclusion in TI's case is not, of course, conclusive of the issue in Thangarasa's case. The passage which I have just quoted is carefully worded, and in any event each case must be approached by the Secretary of State on its own facts. So it does not follow inevitably from the fact that TI's complaint of a breach of his rights under article 3 of the ECHR was found to be manifestly unfounded that the Secretary of State was entitled to certify that Thangarasa's allegation that his human rights had been breached was manifestly unfounded in terms of section 72(2)(a) of the 1999 Act. But it goes a long way towards showing that this was so. It demonstrates that it is the result, rather than the route by which the decision is arrived at, that matters. It also shows that, even if the protection of section 53(6) of the Aliens Act was not available, this would still leave open the question whether the applicant was entitled to protection against removal to Sri Lanka under article 3 of the ECHR.

    56. Although the German Government provided the European Court with assurances about its domestic law and practice and as to how TI's case would be dealt with if he were to be returned to Germany, it was not a party to the case. The jurisprudence of the German Constitutional Court indicates that the decision would not be regarded as binding on Germany in these circumstances. Nevertheless it is not in doubt that Thangarasa would have a right of individual petition to the European Court of Human Rights after he had exhausted all domestic remedies in Germany. Nor is it in doubt that Germany would scrupulously comply with any request by that court to suspend execution of any deportation order until his petition had been dealt with. Mr Gill did not suggest that the Court of Appeal was wrong to accept, in paragraph 65 of its judgment, the Secretary of State's submission that it is the universal practice of the German Courts and Executive to comply with judgments of the European court in proceedings to which it is a party and that there has been no case in which that court has found Germany to be in violation of article 3 in respect of the deportation of a rejected asylum seeker. These considerations seem to me to be conclusive of the issue as to whether his rights under article 3 would be at risk of being violated if he were to be returned to Germany.

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