Abdi & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

The appeals concerned the procedure for asylum appeals under section 8(1) of the Asylum and Immigration Appeals Act 1993 and paragraph 180K of the Immigration Rules (HC 725) which permit the Secretary of State to certify that an asylum claim is "without foundation" because there is a safe third country. The primary legal questions were (i) whether the Secretary of State is obliged to disclose to the Special Adjudicator and the appellant the material on which he relied in issuing a "without foundation" certificate, and (ii) whether the Secretary of State's short letter of explanation could amount to evidence sufficient to support the certificate.

The majority held that Parliament had deliberately created a special, expedited procedure for "without foundation" appeals and had specified the documents the Secretary of State must supply (see Rule 5(6) of the 1993 Rules); the court would not read into that scheme a general implied duty to disclose all material relied on by the Secretary of State. The shortened times and the procedural framework, together with powers available to the Special Adjudicator (for example to extend time, to require particulars and to summon witnesses), meant that the rules provided adequate safeguards. The Secretary of State's letter constituted at least some admissible evidence under the incorporated rules and could be sufficient in the circumstances to uphold the certificate. Accordingly the House of Lords affirmed the Court of Appeal and dismissed the appeals.

Two Law Lords dissented on the disclosure point and on the sufficiency of the Secretary of State's bare letter: they would have required disclosure of material in the Home Office's possession which could support the appellant's case and would have quashed the Special Adjudicators' decisions because the only material before them was the ipse dixit of the Secretary of State.

Background and facts.

Two Somali nationals travelled to the United Kingdom via Spain and on arrival claimed asylum. The Home Office certified that their claims were "without foundation" under paragraph 180K of the Immigration Rules on the basis that Spain was a safe third country. The refusal letters recited a short explanation stating that "the Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, has no reason to believe ... the authorities there would not comply with their obligations under the Convention." Each appellant appealed to a Special Adjudicator under section 8(1) of the Asylum and Immigration Appeals Act 1993. The Special Adjudicators upheld the certificates. On judicial review Sedley J. quashed both the certificates and the Special Adjudicators' decisions. The Court of Appeal reversed in part, restoring the Special Adjudicators' decisions and holding that the Secretary of State's certificates should not be quashed; one Court of Appeal judge dissented. The appellants appealed to the House of Lords.

Nature of the applications and issues.

• Nature of claim: appeals and judicial-review challenges to Special Adjudicators' determinations and to the Secretary of State's "without foundation" certificates in expedited asylum appeal procedure.
• Principal issues: (i) whether the Secretary of State must disclose to the Special Adjudicator and the appellant all material in his possession relevant to a "without foundation" certificate; (ii) whether the Secretary of State's short explanatory letter constituted evidence sufficient to support the certificate; and (iii) whether the existing Rules and safeguards provided by Parliament were compatible with procedural fairness in these life‑and‑death matters.

Court's reasoning and conclusions.

The majority analysed the statutory scheme created by the 1993 Act and the Asylum Appeals (Procedure) Rules 1993. They emphasised Parliament's deliberate choice to create an expedited procedure with specific shorter time limits and the specific documentary obligations in Rule 5(6) (decision letter, notes of interview and documents referred to in the decision). The majority were unwilling to imply a free-standing duty of general discovery into the statutory scheme: to do so would be inconsistent with the structure and purpose of the special procedure and risk frustrating the statutory aim of speed. They noted that Special Adjudicators retain powers (to extend time, to order particulars, to summon witnesses and documents) and that the United Kingdom Representative of the UN High Commissioner for Refugees may participate. On the subsidiary point, the majority held that the Secretary of State's letter did constitute some admissible evidence under the incorporated rules and, in the circumstances of these appeals, was sufficient for the Special Adjudicators to uphold the certificates.

Dissenting opinions.

Two Law Lords concluded that, given the Home Office's superior access to information on countries' asylum practices, fairness required disclosure of material in the Secretary of State's possession which might support the appellant's contention that a third country was not safe. They found the Home Office letters to be no more than ipse dixit and would have quashed the Special Adjudicators' decisions for unfairness; they would not have quashed the Secretary of State's certificates on a substantive basis but required the Special Adjudicators to have the material necessary to perform their de novo review.

Wider implications.

The decision identifies the limits of judicial augmentation of a detailed statutory procedure for expedited asylum appeals and balances the competing considerations of procedural fairness against the need for speed in third‑country removal cases. It confirms that, absent clear statutory provision, courts will be cautious about implying extensive disclosure duties into a specially framed fast‑track appeal regime.

Majority: The appeals are dismissed and the Court of Appeal orders of 20 April 1994 are affirmed. The House of Lords held that Parliament created a special expedited procedure for "without foundation" asylum appeals and did not intend a general implied duty on the Secretary of State to disclose all material in his possession; the documents specified by Rule 5(6) and the Special Adjudicator's powers provide the statutory safeguards. The Secretary of State's explanatory letter amounted to some admissible evidence and in these cases was sufficient to uphold the certificates. Dissent: two Law Lords would have quashed the Special Adjudicators' decisions because the Home Office had no substantial material before the adjudicators other than an unexplained assertion, and fairness required disclosure of material pointing the other way.

Judicial review by Sedley J.: quashed the Secretary of State's certificates and the Special Adjudicators' determinations (reported in judgment). Court of Appeal (20 April 1994): majority (Neill L.J. and Peter Gibson L.J.) restored the Special Adjudicators' decisions and held the Secretary of State's certificates should not be quashed; Steyn L.J. dissented. House of Lords (15 February 1996): affirmed the Court of Appeal (this judgment) and dismissed the appeals. (Neutral citation of this House of Lords decision: [1996] UKHL 9.)