R v Secretary of State for the Home Department, Ex p Adan (Lul Omar) (R v Secretary of State for the Home Department, Ex parte Aitseguer, R v Secretary of State for the Home Department, Ex parte Subaskaran)

Under section 2(2)(c) of the Asylum and Immigration Act 1996, the Secretary of State must distinguish between the Convention’s interpretation and its application. Whether a third country applies the Convention’s true meaning is a question of law. Whether its procedures create a real risk of onward removal contrary to the Convention is a factual question subject to enhanced judicial review. States have discretion in applying the Convention, but no discretion to exclude essential classes of refugees. Article 1A(2) protects persons facing well-founded persecution by non-State agents where the home State is unwilling or unable to provide protection, including where no effective State authority exists. Alternative protection need only address refoulement risk, not the full range of Convention social rights.

Three conjoined judicial-review cases concerned asylum seekers whom the Secretary of State had certified as returnable to France or Germany as safe third countries under section 2(2)(c) of the Asylum and Immigration Act 1996. The Secretary of State later agreed to consider the claims substantively, making the appeals academic for the individuals. The Court nevertheless heard them because the issue affected numerous pending cases.

The Divisional Court dismissed Adan’s application: [1999] IAR 114. Sullivan J allowed Aitseguer’s application: [1999] INLR 176. Subaskaran’s renewed permission application was directed to the Court of Appeal after permission had been refused below. The central issue was whether France and Germany could be treated as safe third countries where their interpretation of the Refugee Convention excluded or restricted claims based on persecution by non-State agents, and whether alternative forms of protection were sufficient.

Disposition and jurisdiction. The Court of Appeal held that it had jurisdiction to hear Subaskaran’s substantive judicial-review proceedings after granting permission on a renewed application. A renewed application under Order 59 rule 14(3) is a true appeal. The pre-existing jurisdiction to hear the substantive claim after granting leave survived under section 15(2) of the Supreme Court Act 1981. Sections 29 and 31 did not confine judicial-review jurisdiction exclusively to the High Court. The court followed Kemper [1998] 3 WLR 630 and R v Industrial Injuries Commissioner, ex p AEU [1966] 2 QB 21.

1. Academic appeals. Applying Salem [1999] AC 450, the court exercised its discretion to decide the otherwise academic public-law issue. The question was discrete, of general importance, and arose in a large number of similar cases.
2. Section 2(2)(c). The Secretary of State had to decide whether the third country’s practice was consistent with the Convention’s true interpretation, and whether practical obstacles created a real risk that the claimant would be sent elsewhere contrary to the Convention. The first issue was law and was reviewable for illegality. The second was fact and was reviewable on an enhanced Wednesbury basis with anxious scrutiny, following Ex p Bugdaycay [1987] AC 514 and Ex p Canbolat [1997] 1 WLR 1569.
3. Convention interpretation. Exact conformity with English case law was unnecessary, and signatory States retained discretion in applying the Convention. But the essential classes protected by Article 1A(2) were a matter of objective legal interpretation. Persons with a well-founded fear of persecution by non-State agents who lacked effective State protection were within the Convention. The accountability approach adopted in France and Germany was therefore legally inconsistent with Article 1A(2).
4. Joint Position and alternative protection. The European Union Joint Position was not an authoritative interpretive instrument and stated only a minimum necessary position. Under section 2(2)(c), alternative procedures mattered only insofar as they avoided refoulement contrary to Article 33.1. The Secretary of State was not required to secure Convention social rights in the third country, although the adequacy of alternative protection required assessment in a concrete case.

The appeal was allowed in Adan’s case and dismissed in Aitseguer’s and Subaskaran’s cases, with costs as ordered. The court stated that a declaration could be granted that the certificates were unlawful.

1. Court of Appeal (Civil Division) — heard the conjoined appeals and substantive judicial-review proceedings; appeal allowed in Adan and dismissed in Aitseguer and Subaskaran: [1999] EWCA Civ 1948.
2. Divisional Court — dismissed Adan’s application and refused leave to appeal: [1999] IAR 114.
3. Queen’s Bench Division — Sullivan J allowed Aitseguer’s application and quashed the certificate: [1999] INLR 176. Laws J refused Subaskaran permission to apply for judicial review; the renewed application was later directed to the Court of Appeal.