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

Before certifying under section 2 of the Asylum and Immigration Act 1996 that an asylum seeker may be sent to a safe third country, the Secretary of State must be satisfied that there is no real risk of onward removal otherwise than in accordance with the Refugee Convention. A system ordinarily capable of securing compliance may satisfy that standard despite isolated aberrations. Remote or unforeseeable possibilities do not constitute a real risk.

The Secretary of State must take reasonable steps to acquaint himself with the relevant facts. On judicial review, the court respects his responsibility to evaluate the evidence, but applies anxious scrutiny because removal may endanger fundamental human rights. The Convention does not require a contracting state to provide a suspensive appeal against removal.

A Turkish citizen of Kurdish origin claimed asylum after travelling from Paris to the United Kingdom. The Secretary of State certified under section 2 of the Asylum and Immigration Act 1996 that France was a safe third country, and an immigration officer refused her leave to enter.

The Divisional Court dismissed her application for judicial review. The Court of Appeal granted leave to appeal and considered whether the Secretary of State could lawfully issue the certificate and whether the commencement of the 1996 Act contravened European Community law because the Government had not complied with Commission Decision 88/384/EEC.

By the hearing, the lapse of time meant that the applicant could no longer be removed before her asylum claim was determined. The appeal therefore proceeded to clarify issues of general importance.

1. The appeal was dismissed. The Secretary of State was entitled, on the material available, to conclude that France would comply with its Convention obligations. The adverse decisions of special adjudicators and evidence of serious procedural failures in individual French cases gave cause for concern. Nevertheless, the court's function was review rather than a fresh assessment of the merits.

2. The Divisional Court had accepted the wrong formulation of the statutory threshold. The “reasonable degree of likelihood” standard derived from R v Secretary of State for the Home Department, Ex parte Sivakumaram [1988] AC 958 governs whether an asylum seeker has a well-founded fear of persecution. It does not govern certification under section 2(2)(c) of the Asylum and Immigration Act 1996.

   The condition in section 2(2)(c) is fulfilled only where there is no real risk that the third country will send the asylum seeker elsewhere otherwise than in accordance with the Convention. Absolute effectiveness is unnecessary. A system which can ordinarily be expected to provide Convention protection may satisfy the condition despite isolated aberrations. Remote possibilities and unpredictable changes do not amount to a real risk.

3. The Secretary of State is responsible for evaluating the material and forming the statutory opinion. He must take reasonable steps to acquaint himself with the relevant facts. A reviewing court may intervene where the conclusion lies outside the range open to a reasonable decision-maker. Because asylum decisions engage fundamental human rights and may place life at risk, the court requires correspondingly strong justification and applies the most anxious scrutiny.

4. On the evidence, the French substantive law and asylum procedures were capable of providing Convention protection. The reported failures had to be considered against the large number of French asylum applications and other evidence available to the Secretary of State. The court could not hold that his opinion was legally unavailable, although future decisions should address material reports bearing on actual French practice.

5. The Refugee Convention does not require contracting states to provide a suspensive appeal against a decision to remove an asylum seeker. Commission Decision 88/384/EEC did not concern asylum law and did not invalidate the commencement of the 1996 Act. The court also doubted that the Decision could found an individual complaint.

6. No relief would in any event have been granted because the challenged decisions could no longer prejudice the applicant. There was no order as to costs.

1. Court of Appeal: Granted leave to appeal but dismissed the appeal. It clarified the statutory test while upholding the result reached below.

2. Divisional Court: Lord Bingham LCJ and Moses J dismissed the application for judicial review on 14 February 1997.