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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jalloh (AP), Re Application For Judicial Review [2001] ScotCS 252 (6 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/252.html Cite as: [2001] ScotCS 252, 2002 SCLR 248 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD EASSIE in the petition of ABBAS JALLOH (AP) Petitioner; for Judicial Review of a Decision by the Secretary of State for the Home Office to certify the Petitioner's Asylum Application on Third Country Grounds under the Immigration and Asylum Act 1999 and of a Certificate issued under Section 72(2)(a) of the Act
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Petitioner: Wallace; Allan McDougall & Co, SSC
Respondent: Miss A M Wilson; H F Macdiarmid,
Solicitor to the Advocate General for Scotland
6 November 2001
[1] The petitioner is a citizen of Sierra Leone who arrived in Dover, Kent, on 6 May 2000. He claimed political asylum and in support of that application he submitted a completed form SEF5 (7 July 2000. In that form he stated, in summary, that in 1994 when he was 16 years of age, rebel fighters attacked the village in which he lived in Sierra Leone. His parents were killed and he was forced to serve with the rebel forces. He served with them until he escaped from Sierra Leone as a stowaway in a container on a ship, from which container he did not emerge until the ship arrived in Dover in May 2000. The petitioner also stated in his application that if he were returned to Sierra Leone, he feared for his life. The sources of that fear were described (Part D 3) thus - "My life will be in danger from all sides - rebels, government and others". The proposition that he would be in danger not only from the rebels but also from the State in Sierra Leone is repeated elsewhere in his application for asylum and it was accepted by counsel for the petitioner that the petitioner's position was that he was in danger both from the State authority and from the rebel forces in Sierra Leone.
[2] It is now accepted by the petitioner that his account of having stowed away in a container on a ship from which he did not emerge until the arrival of the ship in Dover in the United Kingdom is false. In fact, the petitioner left Sierra Leone in 1995, arriving in Germany in October 1995 where he applied to the German authorities for political asylum. He remained in Germany until his departure for the United Kingdom in May 2000.
[3] Since the petitioner thus first applied for asylum in Germany, his case is one to which the Dublin Convention - that is to say, the "Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community" - might apply. In due course, on 12 September 2000, the appropriate authority in the Federal Republic of Germany intimated that in accordance with Article 8 of the Dublin Convention Germany accepted responsibility for examining the pursuer's claim for asylum - see No 7/4 of process, p.9. That acceptance of responsibility brings into play section 11 of the Immigration and Asylum Act 1999 ("the 1999 Act").
[4] Whereas section 15 of the 1999 Act provides - put shortly - that a person having claimed asylum may not be removed from the United Kingdom until his application has been finally determined, that protection does not apply in respect of removal to another Member State where, in terms of sub-section (2) of section 11, the Secretary of State has certified that:-
"(i) The Member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and
[5] The Dublin Convention constitutes "standing arrangements" in terms of section 11. Where such a certificate has been issued, sub-section (1) of section 11 provides that in determining whether the person concerned may be removed from the United Kingdom;
"... a Member State is to be regarded as -
The "Refugee Convention" is defined in section 167(1) of the 1999 Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention.
[6] By a letter dated 11 October 2000 addressed to the petitioner (No 7/2 of process) the respondent Secretary of State for the Home Department narrated that by virtue of sub-section (1) of section 11 of the Act Germany was to be regarded as -
"(a) a place where your life and liberty will not be threatened by reason of your race, religion, nationality, membership of a particular social group or political opinion; and
Following that narration the Secretary of State issued a certificate under sub-section (2) of section 11 in these terms:-
"Third Country Certificate
On the basis of his knowledge of the immigration policies and practices of Germany and on previous experiences of returning passengers to Germany, the Secretary of State is of the opinion that, in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention. He hereby certifies, therefore, that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act 1999 are satisfied, namely that:
- you are not a national or citizen of Germany".
[7] The present petition for judicial review seeks in the first place to quarrel the validity of that certificate. As I understood counsel for the petitioner, the basis of that challenge proceeded from the decision of the House of Lords in R. v Secretary of State for the Home Department, ex parte Adan [2001] 2 WLR 143; [2001] 1 All ER 593. That case concerned the certification by the then Home Secretary under section 2(2)(c) of the Asylum and Immigration Act 1996 of Germany as a "safe country", that is to say, a country which would not return an asylum seeker to another country otherwise than in accordance with the Refugee Convention. The case turned on an acceptance by the Secretary of State for the Home Department that, at least at the relevant time, Germany adopted an interpretation of the Refugee Convention which was not shared by the United Kingdom and which did not recognise persecution by non-State agents as relevant to a claim for protection under that particular Convention. The House of Lords took the view that the German (and also the French) approach to the interpretation of the Refugee Convention was not sound and that the Secretary of State had misdirected himself in considering that the German (and French) interpretation fell within a permissible range of interpretations. His certificate to the effect that Germany was thus a "safe" country was invalid on that account.
[8] A material change effected by the 1999 Act (and I think not fully appreciated by counsel for the petitioner prior to his beginning his presentation of the petition), is that, in the case of other States which are both Members of the European Union and parties to standing arrangements such as the Dublin Convention, that particular element of certification has been superseded by sub-section (1) of section 11 of the 1999 Act. In that legislative provision Parliament has effectively declared that other Member States of the European Union, to whom standing arrangements apply, are to be regarded as "safe countries". Consequently the certification exercise upon which the Secretary of State may now embark involves but two simple issues of fact namely (1) whether the other Member State has accepted responsibility for determining the claimant's application for asylum under standing arrangements, and (2) whether the person concerned is or is not a national or citizen of that Member State.
[9] While accepting that in the present case neither of those two matters were in any dispute, counsel for the petitioner submitted that by referring in the certificate letter to his "knowledge of immigration policies and practices of Germany..." and opining that "in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention."; the Secretary of State had taken into account an irrelevant consideration.
[10] As I indicated during the argument before me, since the certification in terms of sub-section (2) of section 11 of the 1999 Act was confined to the two short undisputed facts to which I have adverted, it was difficult to see how the passages in question could have any materiality respecting the validity of the Secretary of State's certificate for the petitioner's return to Germany. I adhere to that view and consider that there is no substance in this attempt to impugn the validity of the Secretary of State's certificate of 11 October 2000. I am further fortified in that view by what was said by the Court of Appeal in England in Ayman Ibrahim v Secretary of State for the Home Department [2001] Imm Ar 430 (to which neither counsel referred). Subject to the substitution of "Germany" for "France" the terms of the "Third Country Certificate" in that case are identical to those in the certificate in the present case. In his judgment, Simon Brown V.D. said, respecting the text of the equivalent first sentence of the certificate in the present case:-
"15. The first ground [of challenge] is that the Secretary of State in exercising his discretion to certify the case under section 11(2)(a), had regard to an irrelevant consideration. This argument is founded on the first sentence in paragraph 5 of the decision letter which, it is suggested, 'is tainted by a plain misdirection in law' because it conflicts with the decision in Adan.
16. There are in my judgment two complete answers to that argument. First, the impugned sentence is, to my mind, plainly superfluous. The Secretary of State's decision had already been taken under the deeming provision: see paragraph 2 of the letter, which in turn sets out the provision of section 11(1) of the Act. Parliament has, it is clear, in unambiguous terms dictated that henceforth France, amongst other Member States, is to be regarded as a safe third country. Of course the Secretary of State is not bound to certify in every case, but where he chooses to do so, in my judgment that certificate cannot be impugned on grounds that France after all is not properly to be regarded as a safe third country."
[11] I agree that the first sentence of the certificate is superfluous and accordingly, in my view there is no substance in this, the only remaining, element of challenge to the validity of the certificate contained in the letter of 11 October 2000 which was advanced by counsel for the petitioner.
[12] I turn now to the second branch of the petition, which concerns the validity of the certificate of the respondent Secretary of State under s. 72(2)(a) of the 1999 Act.
[13] In enacting the terms of section 11 of the 1999 Act, Parliament envisaged that a certificate under that section should be subject to the rights of a claimant for asylum to have the certificate set aside on an appeal under section 65 of the 1999 Act (cf. S.11(3) of the 1999 Act). Section 65 provides for an appeal to an adjudicator where a person alleges that an authority has, in taking any decision relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights. The term "human rights" is defined by reference to actings unlawful in terms of the Human Rights Act 1998.
[14] The petitioner elected to make such an allegation and on 3 January 2001 presented a document invoking breaches of various provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). That appeal document is No 7/5 of process. It proceeds in part on the factual contention that the petitioner had never been to Germany in his life, a contention now accepted as being false. Insofar as it is suggested therein, or in the present petition, that ECHR Article 6 has been breached, counsel for the petitioner expressly abandoned any such contention. The appeal document further avers that the petitioner believed persecution by State authorities was the sole ground upon which asylum would be recognised in Germany. It further states that he is not persecuted only by State authorities but by rebel forces also. Thereafter one finds the short statement that if returned to his home state the applicant faced breaches of the human rights afforded to him by Articles 2, 3, 4, 5, 6, 7 of ECHR. The appeal document contains little elaboration of the particular respects in which those Articles might be breached but for present purposes that lack of detail is of little matter.
[15] In response to that appeal document, the Secretary of State by letter of 29 January 2001 certified in terms of Section. 72(2)(a) of the 1999 Act that the allegations of breach of the petitioner's human rights were manifestly unfounded. The material parts of that decision letter are in these terms:-
"The Immigration Service is not directing removal to Sierra Leone but to Germany, which is a Member State of the EU and which has accepted responsibility for consideration of the appellant's asylum application in accordance with the Dublin Convention. Contrary to your client's assertions the German authorities, by means of fingerprint comparisons, have confirmed that your client entered Germany on 5 October 1995 where he claimed asylum and remained there until his departure to the United Kingdom.
The Secretary of State has considered whether the authorities of Germany would return the appellant to Sierra Leone in breach of his human rights. The Secretary of State has noted that Germany is a full signatory to the Geneva Convention of 1951 and to the ECHR. The Secretary of State is not satisfied therefore that the appellant would be returned to Sierra Leone otherwise than in accordance with Germany's obligations under these Conventions.
The Secretary of State routinely and closely monitors the practice and procedures of Member States including Germany in the implementation of the ECHR in order to be satisfied that its obligations are fulfilled. He is satisfied that the appellant will be able to raise any continuing protection concerns that he may have under the provisions of the ECHR with the authorities in Germany and that he would not be subjected to inhuman and degrading treatment or punishment if removed there."
The Secretary of State thereafter proceeded in the letter to certify the allegation of a breach of the petitioner's rights under the ECHR as being manifestly unfounded.
[16] The petition challenges the validity of that certificate, the contention as I understood it, being that - (i) in view of the acceptance by the Home Secretary in Adan that Germany adopted a different interpretation of the Refugee Convention respecting persecution by non-State agents, the petitioner would not be able to rely, in Germany, on that aspect of his asylum claim which involved persecution by rebel - non-State - agencies; (ii) he would, it was said, therefore be repatriated to Sierra Leone; and (iii) on such repatriation he would be likely to suffer a fate which would constitute a breach of one or more of Articles 3, 4, 5 and 7 of the ECHR.
[17] Central to the submission for the petitioner thus appears to be the assertion that since, according to what had been accepted by the then Home Secretary in Adan as then applying to Germany, non-State persecution was not seen by the German authorities as giving a right to asylum under the Refugee Convention, it follows that the petitioner would be returned by those authorities from Germany to Sierra Leone, in breach of his human rights.
[18] However, in my view, that approach suffers from two significant flaws or misconceptions.
[19] First, as counsel for the respondent pointed out, the petitioner's claim for asylum is not based simply on a fear of non-State persecution. It asserts a fear of State persecution. If one assumes the petitioner's account of matters to be accurate, it would therefore result in his being granted asylum in Germany. The fact that he has the additional fear of persecution from non-State elements does not mean that his claim based on State persecution should not be accepted.
[20] Secondly, and perhaps more fundamentally, it is plain that the mere act of returning the petitioner to Germany does not in itself involve any breach of any of his human rights. In order that such a step can properly be presented as involving a breach of the petitioner's human rights, it is necessary to assume that Germany will return the petitioner to Sierra Leone in breach of its ECHR obligations and, further, in the event of matters going wrong in the domestic courts of the Germany, that the Federal Republic of Germany would flout any interim measure ordered by the European Court of Human Rights in Strasbourg in terms of Rule 39 in proceedings brought by the petitioner against Germany under Article 34 ECHR. (An example of the making of such interim measures is to be found in Soering v United Kingdom (1989) 11 EHRR 439). It is not averred in the petition, nor was it suggested by counsel, that there is any basis for believing that the German administrative and judicial authorities would act in breach of their ECHR obligations or that the petitioner would lack effective means in Germany for securing observance of such ECHR rights as are properly conferred upon him. Accordingly, since it is not suggested that Germany and its judicial and administrative authorities do other than observe the terms of the ECHR obligations incumbent on them, it does not follow that in the event that asylum is not granted in Germany in terms of the Refugee Convention, the petitioner will be returned to Sierra Leone in circumstances which involve a breach of his human rights.
[21] I accordingly consider that no relevant grounds for impugning the certificate under section 72(2)(a) of the 1999 Act have been demonstrated.
[22] In these circumstances I must dismiss the petition.
