R v Secretary of State for the Home Department, Ex parte Abdi (Gawe, Ex parte, R v Secretary of State for the Home Department, Ex parte Gawe)

In an expedited asylum appeal against a certificate that a claim is without foundation, the Secretary of State has no implied duty to disclose all relevant information and documents concerning the safety of the proposed third country. Such a duty is inconsistent with procedural rules which prescribe particular disclosure obligations and are designed to secure a prompt determination.

The special adjudicator nevertheless determines the appeal independently. A decision letter recording the Secretary of State’s knowledge of the third country’s practices and experience of returning applicants there is admissible evidence. Where that evidence is unchallenged, the adjudicator may treat it as sufficient to uphold the certificate.

Two Somali nationals travelled through Spain before claiming asylum upon arrival in the United Kingdom. The Secretary of State declined to consider their claims substantively and certified them as without foundation because Spain was regarded as a safe third country under paragraph 180K of the Immigration Rules. Special adjudicators dismissed their appeals.

Sedley J quashed both the certificates and the adjudicators’ decisions. The Court of Appeal, by a majority, restored the adjudicators’ decisions and declined to quash the certificates. The asylum seekers appealed with leave.

The House considered whether the Secretary of State had to disclose all relevant material concerning the safety of Spain and whether his decision letters constituted sufficient evidence upon which the adjudicators could uphold the certificates.

1. Appeals dismissed by a majority of three to two. Lord Lloyd of Berwick delivered the leading speech. Lord Keith of Kinkel and Lord Jauncey of Tullichettle agreed with him. The Court of Appeal’s orders were affirmed.

2. Per Lord Lloyd, the Secretary of State had no implied obligation to give discovery of all material relevant to the safety of a proposed third country. The Asylum Appeals (Procedure) Rules 1993 prescribed the documents which had to be provided. Their limited disclosure requirement could not be reconciled with a wider implied duty to disclose all relevant documents. This was not a legislative gap which the common law could fill.

3. The accelerated procedure served the legislative purpose of returning an applicant promptly to a safe third country so that the substantive claim could be considered there. Fairness was protected by the adjudicator’s powers to extend relevant time limits, obtain particulars, summon witnesses and require documents. The United Nations High Commissioner for Refugees could participate, and special adjudicators had access to other sources of country information. Imposing general discovery risked frustrating the intended speed of the procedure.

4. Per Lord Lloyd, the decision letters were admissible evidence under the incorporated procedural rules. They recorded the Secretary of State’s knowledge of Spain’s immigration practices and his experience of returning passengers there. Although the evidence was limited, it was some evidence. As it had not been challenged and the issue argued before the adjudicators had principally concerned the applicants’ opportunity to seek asylum in Spain, the adjudicators were entitled to uphold the certificates.

5. Lord Mustill agreed that the statutory scheme excluded an implied disclosure duty. He dissented on evidential sufficiency. In his view, a party’s bare assertion of honest belief did not become evidence merely because that party was the Secretary of State.

6. Lord Slynn of Hadley dissented on both principal issues. He considered that independent adjudication and procedural fairness required disclosure of material which supported, or genuinely tended to support, the applicant’s contention that the third country was unsafe. He also regarded the unexplained assertion in the letters as no more than the Secretary of State’s own conclusion, rather than evidence from which the adjudicators could decide the issue independently.

1. House of Lords: Dismissed the consolidated appeals by a majority of three to two and affirmed the Court of Appeal’s orders.
2. Court of Appeal: By a majority, declined to quash the Secretary of State’s certificates and restored the special adjudicators’ decisions. Steyn LJ would have quashed the adjudicators’ decisions.
3. High Court: Sedley J quashed the Secretary of State’s certificates and both special adjudicators’ decisions for breach of natural justice, and also held the certificates irrational.
4. Special adjudicators: Independently dismissed the asylum appeals and upheld the certificates that the claims were without foundation.