Kerrouche, R (on the application of) v Secretary Of State For Home Department

A third country is not unsafe merely because its interpretation of the Refugee Convention differs from that applied in the United Kingdom. The difference must be sufficiently significant to show that the third country would not apply Convention principles, and must fall outside the range of tolerance properly allowed between signatory states. In asylum appeals, anxious scrutiny requires an adjudicator to address a readily discernible unraised point that could materially improve the outcome, but does not require a search for new points. There is no general duty to disclose all material concerning a safe third country, although the Secretary of State must not knowingly mislead the adjudicator. A suspensive right of appeal in the third country is unnecessary.

The appellant, an Algerian national, claimed asylum in the United Kingdom on the basis that he feared persecution in Algeria. The Secretary of State refused the claim without substantive consideration, certifying that France was a safe third country, and proposed removal there.

A Special Adjudicator dismissed the appellant’s appeal. Tucker J dismissed his application for judicial review. The appellant appealed to the Court of Appeal, raising issues concerning differing interpretations of the Refugee Convention, an unraised point, disclosure of documents, and the absence of a suspensive right of appeal in France. The central issue was whether France could properly be treated as a safe third country despite the alleged differences in interpretation and procedure.

1. Appeal dismissed. The Court of Appeal, in the judgment of Lord Woolf MR agreed by Roch and Henry LJJ, dismissed the appeal. Leave to appeal to the House of Lords was refused.
2. Interpretation of the Refugee Convention. Rule 345 of the Immigration Rules permits refusal without substantive consideration where the third country will respect the principles of the Convention. A difference between English and foreign interpretations does not by itself make the third country unsafe. The difference must be sufficiently significant, in the circumstances of the individual applicant, to show that the third country would not apply Convention principles. Until international interpretation is harmonised, signatory states must allow one another a margin of appreciation. The material relied on did not establish any significant difference between the French and English approaches to Article 1F(b). The broad approach adopted in Chiper was rightly followed.
3. Unraised points. Anxious scrutiny requires a Special Adjudicator or Tribunal to deal with, or draw attention to, a readily discernible point which could materially improve an appellant’s case. There is no obligation to investigate for points not advanced. A court may exceptionally permit a pure point of law not raised below to be argued as an indulgence, particularly where the point can be resolved without findings of fact.
4. Disclosure. Abdi and Gawe supplied the starting point that there is no general duty to disclose every document concerning the safety of a third country. That principle does not permit the Secretary of State knowingly to mislead the adjudicator. Disclosure becomes necessary where the Secretary of State knows, or ought to know, that undisclosed material materially detracts from the evidence relied on. The Kennedy letters did not meet that threshold, particularly in light of direct assurances from the French authorities that the appellant’s claim would be considered.
5. Appeal rights in the third country. There is no requirement that a safe third country provide a suspensive right of appeal. Even assuming that the Special Adjudicator misunderstood French law, the error could not have affected the result when the determination was read as a whole. The remaining grounds lacked substance.

• Court of Appeal (Civil Division) — In [1997] EWCA Civ 2263, the appeal from Tucker J was dismissed and leave to appeal to the House of Lords was refused.
• High Court, Queen’s Bench Division — Tucker J dismissed the appellant’s application for judicial review on 21 December 1996.
• Special Adjudicator — Mr Fox dismissed the appellant’s asylum appeal in a determination dated 4 September 1996, following a hearing on 30 August 1996.