R v Secretary of State for the Home Department, Ex p Bugdaycay (Ex p Bugdaycay, Bugdaycay v Secretary of State for the Home Department, Musisi, In re, Nelidow Santis, Ex parte, Nelidow Santis v Secretary of State for the Home Department, Norman, Ex parte, Norman v Secretary of State for the Home Department, R v Secretary of State for the Home Department, Ex parte Nelidow Santis, R v Secretary of State for the Home Department, Ex parte Norman)

Questions of fact governing whether asylum should be granted are entrusted to the immigration authorities. On judicial review, the court examines the legality of their decision-making process rather than deciding refugee status afresh. The intensity of review increases with the gravity of the consequences. A decision which may expose a person to death or persecution requires the most anxious scrutiny.

The prohibition against refoulement extends to removal to a third country where there is a sufficiently substantial danger that the person will be sent onwards to a territory in which life or freedom is threatened. The decision-maker must assess that danger using all relevant evidence.

Temporary admission pending an immigration decision does not make a person lawfully present for the protection against expulsion in article 32.1 of the Refugee Convention.

Three appellants entered the United Kingdom with limited leave for stated purposes and subsequently claimed asylum. The Secretary of State rejected their claims and directed their removal as illegal entrants. Their applications for judicial review were refused, and the Court of Appeal dismissed their consolidated appeals in [1986] 1 W.L.R. 155.

Musisi arrived from Kenya, was temporarily admitted and claimed asylum as a refugee from Uganda. The Secretary of State assumed that he might face persecution in Uganda but decided that he could safely be returned to Kenya. Mann J refused judicial review, and a differently constituted Court of Appeal dismissed his appeal.

The House considered the courts' role in reviewing refugee-status decisions, the availability of in-country appeals, the legality of the first three appellants' entry, the effect of temporary admission, and whether removing Musisi to Kenya risked his indirect return to Uganda.

1. Disposition. Lord Bridge of Harwich delivered the leading speech. Lords Brandon of Oakbrook, Griffiths and Goff of Chieveley expressly agreed with it, while Lord Templeman gave concurring reasons. The first three appeals were dismissed. Musisi's appeal was allowed and the removal directions concerning him were quashed.

2. Judicial review of asylum decisions. Per Lord Bridge, questions of fact affecting the grant or refusal of leave, including whether a claimant is a refugee, are assigned by section 4(1) of the Immigration Act 1971 to the immigration authorities. A reviewing court cannot determine refugee status for itself. R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 was distinguishable because paragraph 9 of Schedule 2 authorised removal only where the person was in fact an illegal entrant.

3. Intensity of review. Per Lord Bridge and Lord Templeman, the court must examine a decision more rigorously according to the gravity of its consequences. Where a flawed decision may imperil life or liberty, the court has a special responsibility. A decision which may put life at risk calls for the most anxious scrutiny.

4. Indirect refoulement. Per Lord Bridge, returning a refugee to a third country may breach article 33.1 where it creates a sufficiently substantial danger that the third country will send the refugee to the territory of feared persecution. The Secretary of State must decide the degree of danger in light of all relevant evidence. If that question has lawfully been addressed and answered, the court cannot substitute its own assessment.

5. Musisi. The decisions rested on confidence that Kenya would honour its Convention obligations. Later evidence indicated that Kenya had returned Ugandan refugees and had been the subject of representations by the United Nations High Commissioner for Refugees. The Secretary of State appeared not to have taken that material fact into account. Applying Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All E.R. 680, the decisions could not stand.

6. Subsidiary issues. Temporary admission under Schedule 2 did not make Musisi lawfully present for article 32.1 because section 11(1) deemed him not to have entered. The statutory restrictions also defeated the asserted right to an in-country appeal. The non-binding UNHCR recommendations could not override section 13(3). The first three appellants were illegal entrants because their material misrepresentations were assessed by reference to the leave actually obtained, not a different application they might have made.

• House of Lords: The House unanimously dismissed the appeals of Bugdaycay, Nelidow-Santis and Norman, affirming the Court of Appeal's orders. It allowed Musisi's appeal and quashed his removal directions.
• Court of Appeal: Oliver, Neill and Balcombe LJJ dismissed the first three appellants' consolidated appeals in [1986] 1 W.L.R. 155. Watkins, Purchas and Dillon LJJ separately dismissed Musisi's appeal; no citation is stated.
• High Court: Taylor J refused the applications of Bugdaycay and Nelidow-Santis. Woolf J refused Norman's application. Mann J refused Musisi's application.