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IN THE SUPREME COURT OF JUDICATURE LTA 97/5807/K

(MR JUSTICE TUCKER )

Royal Courts of Justice

Strand

London WC2

Thursday 31 July 1997

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE ROCH

LORD JUSTICE HENRY

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

R E G I N A

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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

EX PARTE MOHAMMED KERROUCHE

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(Transcript of the Handed-down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR A NICOL QC and MR J GILLESPIE (Instructed by Jane Coker & Partners, London N15 4NP) appeared on behalf of the Appellant.

MR N PLEMING QC and MR R TAM (Instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the court )

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©Crown Copyright

JUDGMENT

LORD WOOLF, MR: This is another appeal involving an asylum seeker. The appellant is an Algerian national who had been living illegally in France since about September 1992. In April or May 1995 he travelled to this country on false documents. He was arrested on the 2nd April 1996. He claimed asylum on the ground that he had a well founded fear of persecution in Algeria. His case was that he feared that he would be treated as a member of a militant Islamic group opposed to the Government. He claims to have been wrongly convicted in his absence of terrorist offences including murder. Others convicted on the same charges have been sentenced to death but he does not know what sentence was passed in his case.

On the 12th June 1996 a previous decision to deport the appellant was withdrawn and he was served with notice that he would be treated as an illegal entrant and removed to France. His claim for asylum was refused without consideration of its merits because the Secretary of State considered France a safe third country and accordingly had certified that his claim did not for this reason, raise any issue under the Refugee Convention. The appellant appealed against the refusal to grant him asylum. The appeal was heard by Special Adjudicator, Mr Fox, on the 30th August 1996 and dismissed in a determination dated 4th September 1996.

The appellant applied for judicial review of the decision of the Special Adjudicator but his application was dismissed by Tucker J on the 21st December 1996. On the application for leave to appeal against that decision Schiemann LJ directed that the application should be heard inter parties by a full court. During the hearing we gave leave to appeal and this is a judgment on that appeal.

The appeal raises four points of some importance. They are:

1. The effect of a difference in interpretation of the provisions of the 1951 United Nations Convention relating to the status of refugees by the courts of this country and those of a country which has been treated as a “safe country” on the ability of the immigration authorities of this country to remove an asylum seeker to that “ safe country”. ( The Question of Interpretation )

2. The circumstances in which a point not considered or raised before a Special Adjudicator can be relied upon in support of an application for judicial review. (The New Point Issue)

3. The obligations of the Secretary of State to disclose documents the existence of which he is aware which are relevant to the issues before the Special Adjudicator. (The Disclosure Issue)

4. The significance of the absence of a “suspensive right of appeal” in the “safe country”. (The Appeal Issue)

The regulatory framework against which these issues have to be determined are contained in the Asylum and Immigration Appeals Act 1993, (the 1996 Act was not in force at the relevant date), the Immigration Rules and the United Nations Convention Relating to the Status of Refugees 1951 and its Protocol.

Section 2 of the 1993 Act provides that nothing in the Rules shall lay down any practice which is contrary to the Convention. Section 8(1) of the Act gives a right of appeal to a Special Adjudicator if the removal of an asylum applicant would be contrary to the United Kingdom’s obligations under the Convention. Article 1 F of the Convention, however, provides:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that;

(b) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee.”

Accordingly if Article 1F applies an asylum seeker does not benefit from Article 33.1 which states:

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

So far as relevant, the Immigration Rules provide:

Rule 328 “All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom’s obligations under the United Nations Convention and Protocol relating to the Status of Refugees.”

Rule 345 “If the Secretary of State is satisfied there is a safe country to which an asylum applicant can be sent, his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

(i) The asylum applicant had not arrived in the United Kingdom directly from the country from which he claimed to fear persecution and has had an opportunity at the border or within the territory of a third country to make contact to that country’s authorities in order to seek their protection; or

(ii) There is other clear evidence of his admissibility to a third country.

Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant.”

Although not directly relevant on the facts of this case, it is also useful to refer to Rule 347 since it assists in the interpretation of Rule 345. Rule 347 provides:

“When an asylum applicant has come to the United Kingdom from another country which is a party to the United Nations Convention relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee status. He may be removed to that country or another country meeting the criteria of paragraph 345, and invited to raise any new circumstances with the authorities of the country which originally considered his application.”

Rule 347 appears to assume that subject to “new circumstances” consideration by a signatory to the Convention is all that is required.

Mr Andrew Nicol QC, on behalf of the appellant, contends that the Special Adjudicator was wrong to reject the appellant’s appeal because France would not be a safe third country although it is a signatory to the Convention. One reason for this is the interpretation which he submits the French authorities place upon Article 1 F(b) of the Convention. The House of Lords has recently considered what should be the proper approach of the courts in this country to the construction of that Article in T v The Secretary of State for the Home Department [1996] AC 742. In that case Lord Lloyd, in a speech with which the majority of the House of Lords agreed stated that for the purposes of Article 1 F(b) that “a crime will only regarded as a political offence if the relationship between the Act and the effect on the government is sufficiently close”.

Mr Nicol submits that in France a narrower interpretation of what is a political crime would be adopted by the French authorities, which would result in Article 1 F(b) being given wider effect in France than in this country.

It is important to note that a third country will not be a safe country if it is a country which would send the asylum seeker elsewhere contrary to the “ principles of the Convention and Protocol ”. Although it is desirable that the approach to the interpretation of the Convention and Protocol should be the same in all countries which are signatories, this is not a realistic expectation in 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. Absent such a body the fact that a particular country adopts an approach to the Convention which involves a difference in emphasis in the interpretation of one or more provisions from that which would be adopted under English law does not necessarily involve that country being regarded as one which does not adhere to the principles of the Convention and Protocol when, as in the case of France, it contends that it does do so.

Mr Nicol submits that because the decision to return the appellant is being made by this country, if an interpretation is adopted by a third country which is more restrictive than that which is adopted in this country, then that is not a safe country to which the applicant for asylum can be returned. This is not the position. The difference in an approach to the interpretation of the Convention and Protocol has to be of such significance that it can be said that in making a decision affecting the position of a particular applicant for asylum, the third country would not be applying the principles of the Convention. For this to be the position, the third country’s approach, would have to be outside the range of tolerance which one signatory country, as a matter of comity, is expected to extend to another. While it is highly desirable that there should be a harmonised approach to the interpretation of international documents such as the Convention, until that harmonisation is achieved, one signatory must allow another signatory a margin of appreciation before treating that other country as being one which did not fulfil its obligations to adhere to the principles of the convention.

Mr Nicol submitted that his approach did not involve criticising the approach of the third country. It was sufficient for his purposes merely to satisfy the court that the French approach was one which was more restrictive so far as the appellant is concerned than the approach which would be adopted here. However the consequence of this approach would be to make the ability of the Secretary of State to remove to a safe third country much less effective than the Convention intended it to be. It would require the Secretary of State and Special Adjudicators to become deeply involved in a comparative analysis of the law of the different signatories to the Convention. In R v Secretary of State for the Home Department and Special Adjudicators ex parte Chiper and others [1995] Imm A.R. 410 Collins J in my judgment rightly indicated that there is no obligation upon the country’s authorities to investigate the details of the hearing before the relevant foreign tribunal for the purposes of Rule 347. It was appropriate to take a broad approach and it would be sufficient if there had been an adherence to an English court’s view of substantial justice. In my judgment a comparable approach should be taken to the differences in interpretation of the Convention between that which would be adopted by English courts and that which would be adopted in the “safe country”. Unless the interpretation adopted by the “safe country” was sufficiently different from that in English law to be outside the range of possible interpretations the difference need not concern the authorities in this country.

In fact the material which is available as to what the approach in France would be is largely dependent upon the views expressed in a letter from France Terre d’Asile of the 8th August 1996. Reliance is also placed upon 4.4 of the Home Office’s “Blue Book”. But this really does not throw any light on the subject. This material does not establish that there is any significant difference in the approach adopted by the French authorities from that in English law.

The possible distinction between the approach in France and this country as to what is a political crime was not raised before the Special Adjudicator. For this reason Tucker J considered that it was not open to the appellant to rely on this point. Mr Nicol submits this was a wrong approach on the part of the judge. On the views I have expressed as to the first issue, this point ceases to be of any direct significance for this approach. However Mr Nicol relies on a substantial body of authority commencing with Lord Bridge’s statement in R v The Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514 at 531. I will therefore deal with it shortly.

The anxious scrutiny which has to be exercised in relation to all issues which could affect the safety of a refugee means that a more relaxed approach should be adopted in relation to procedural failures than would be the case if a less important issue were at stake. If therefore an appellate body, whether it is a Special Adjudicator, of the Tribunal, is aware or ought to be aware that an appellant has not relied upon a point which could materially improve the outcome of his appeal, then the appellate body is under an obligation either to deal with the point or at least draw it to the attention of the appellant. However appellate bodies naturally focus primarily on the cases which are presented before them. They cannot be expected to carry out an investigation themselves to see whether there are points which have not been relied upon by an appellant that could have been relied upon. They are not required to engage in a search for new points. If however there is a readily discernible point which favours an appellant although he has not taken it, the Special Adjudicator or Tribunal should apply it in the appellant’s favour. This is the approach which this court recommended in the case of R v Secretary of State for the Home Department ex parte Robinson , 11th July 1997, (unreported). I see no reason to differ from the approach this court adopted in that case although it was considering the question of an application for leave to appeal to the Tribunal whereas we are concerned with a decision of the Special Adjudicator.

It is important that in general this approach is adhered to, since, if it is not, the court considering an application for judicial review can now find itself in a position that it has not the material in the form of findings by the Special Adjudicator to enable it to come to a decision. If the point is one purely of law which the court considers requires to be resolved in exceptional circumstances it may be prepared as a matter of indulgence to allow the matter to be argued. That is what has in fact happened on this appeal. The Special Adjudicator could not have been expected to have focused on the possible difference between the French authorities and the English courts as to what amounts to a political crime. The unreasonableness of expecting him to do otherwise than he did, is emphasised by the fact that before the French authorities the appellants primary case will be that he did not commit the crime of which he says he has been wrongly convicted by the Algerian authorities in his absence. In addition on any approach one of the offences of which it is said that the appellant is guilty, namely the theft of money from his employers in Algeria, is not one which could be considered political in any country.

Mr Nicol accepts that the Secretary of State is under no general duty to give discovery of all the material on which he concludes a country is a safe third country. He does so because of the decision of the House of Lords in Abdi and Gawe v Secretary of State for the Home Department [1996] Imm AR 288. Lord Slynn of Hadley gave a dissenting speech in that case pointing out that it was the practice of the Secretary of State to provide Special Adjudicators with a bundle of documents limited to those which support the Secretary of State’s decision. They do not include documents which may support the appellants contention. In giving his opinion, with which the majority of the House of Lords agreed Lord Lloyd of Berwick recognised the arguments in favour of disclosure were strong. However he came to the conclusion that the arguments the other way were stronger. He pointed out that:

“We are concerned with the procedural question whether the substantive hearing should take place here or in a third country. The longer the delay between the arrival of the appellant in the United Kingdom and his return to a safe country the less likely it is that that country will be willing to undertake the substantive hearings.... So if the procedure... is to be effective at all it must be fast”

Lord Lloyd went on to say that if courts were to supplement the requirements of the Asylum Appeals (Procedure) Rules 1993 to require disclosure, there would be a risk of frustrating “the evident legislative purpose” that “without foundation” appeals should be considered with all due speed.

While Lord Lloyd’s approach must be the starting point for the consideration of this issue, there are limits to the approach which he indicated in that case. The decision would not justify the Secretary of State knowingly misleading the Special Adjudicator. The obligation of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must either know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied.

The two letters which it is indicated should have been disclosed in this case were from Mr Ben Kennedy, who was the British liaison officer attached to the French immigration authorities. One letter which he wrote was dated the 30th July 1996 and the other letter was dated the 5th August 1996. The earlier letter was dealing with the situation in Calais, but Mr Kerrouche would be flown to France. The second letter however did deal with the position at Charles de Gaulle airport. This letter however indicated that if a person who was returned to France was a person who had been unlawfully in France prior to his departure, his asylum claim would be referred to the prefect of the department where the airport was located. The prefect would be competent in the first instance to deal with the receivability of the claim and this would be followed by a reference to OFPRA. This is not a procedure which on its face is inconsistent with the Secretary of State’s position. More importantly however, in relation to Mr Kerrouche there had been direct communications between the Immigration and Nationality Department and the British Embassy with the French authorities and an assurance had been given by the French authorities that they would consider Mr Kerrouche’s application. This being so, a general statement of the sort made by Mr Kennedy is not significant. I do not therefore regard the Kennedy letters as being ones which should have been disclosed. In addition I do not on this aspect of the case share the judge’s view that it was “unfortunate” that the letters were not included in Mr Tam’s (counsel’s) instructions. In my judgment they need not have influenced the way the case was presented on behalf of the Secretary of State.

Mr Nicol submits that the Special Adjudicator was wrongly under the impression that French law gave the asylum seeker a suspensive right of appeal whereas this is not the case. The evidence on this matter is not entirely clear, but I am prepared to assume that the Special Adjudicator did make a mistake. However there are two difficulties in the way of Mr Nicol relying on this point. First of all that there is no requirement that there should be a suspensive right of appeal in the “safe country”. (See Cambolat v Secretary of State for the Home Department (30th April 1997)C.A. unreported. Secondly reading the decision of the Special Adjudicator as a whole I do not consider that any error as to the suspensive right of appeal would or should have affected the outcome of the appeal.

I have now dealt with the issues which were the subject of Mr Nicol’s skeleton argument and oral submissions. There are supplementary points referred to in the notice of appeal. Mr Nicol indicated that he was still relying upon those points but I do not regard them as raising questions with which it is necessary for me to deal individually as they lack any substance. For the reasons set out above I would dismiss this appeal.

LORD JUSTICE ROCH: I agree.

LORD JUSTICE HENRY: I also agree.

ORDER: Appeal dismissed. Leave to Appeal to House of Lords refused. Legal Aid Taxation of Appellant's costs.