Regina v Secretary of State for the Home Department, Ex parte Adan; Regina v Secretary of State for the Home Department, Ex parte Aitseguer

The House considered the correct construction of s.2(2)(c) of the Asylum and Immigration Act 1996 read with Article 1A(2) and Article 33 of the 1951 Geneva Convention. The court held that the Refugee Convention has an autonomous international meaning and, as a matter of English law, Article 1A(2) covers persons who fear persecution by non-state agents where the home state cannot or will not provide effective protection (the accountability/protection analysis as stated in Adan v Secretary of State for the Home Department [1999] 1 AC 293).

Accordingly the Secretary of State may not certify under s.2(2)(c) that a third state would not return an asylum seeker "otherwise than in accordance with the Convention" when that third state's interpretation of the Convention would, in the Secretary of State's view, lead to a return contrary to the Convention as properly interpreted. The Secretary of State was held to have misdirected himself in issuing the certificates in the present cases and the appeals were dismissed.

Background and facts:

• Two asylum seekers, Adan (Somali national) and Aitseguer (Algerian national), arrived in the United Kingdom after previous presence in Germany and France respectively. German and French authorities had either rejected prior claims or were likely to reject claims on the ground that persecution must be attributable to the state (the "accountability" approach).
• The Secretary of State certified under s.2(2)(c) of the Asylum and Immigration Act 1996 that each could be returned to Germany or France ("safe third countries"). The asylum seekers sought judicial review of those certificates.

Procedural posture:

• The Divisional Court and Sullivan J. made earlier decisions quashing or dismissing certificates; the Court of Appeal (reported [1999] 3 WLR 1274) ruled that Article 1A(2) has an autonomous meaning and quashed the Secretary of State's certificates. The Secretary of State appealed to the House of Lords, which heard the appeals together.

Issues framed:

1. Whether Article 1A(2) of the Refugee Convention has an autonomous international meaning for purposes of s.2(2)(c).
2. If so, what that meaning is in relation to persecution by non-state agents.
3. Whether the Secretary of State could lawfully certify that Germany and France would act "in accordance with the Convention" when their approach differed from the United Kingdom's view of the Convention.
4. Whether alternative forms of protection in the third state could suffice.

Court’s reasoning and decision:

• The House held that treaty interpretation follows the Vienna Convention rules (article 31) and that multilateral conventions such as the Refugee Convention require an autonomous meaning which national authorities and courts must seek to ascertain; there cannot be a catalogue of equally valid, incompatible national interpretations for the United Kingdom’s statutory purposes.
• Relying on the prior Adan decision, the House reaffirmed that Article 1A(2) covers persecution by non-state actors where the state cannot or will not offer effective protection; there is no material distinction between a collapsed state and one unable to protect.
• Therefore s.2(2)(c) must be applied by reference to the Convention as properly interpreted; the Secretary of State was not entitled to certify return to Germany or France where he accepted that those states would probably return the claimants to countries where they faced persecution as covered by the Convention. The certificates were unlawful. The House dismissed the Secretary of State's appeals.
• The House declined to decide on the adequacy of alternative protection available in Germany and France on the facts before it.

Appeals dismissed. The House held that Article 1A(2) of the 1951 Geneva Convention has an autonomous international meaning and, as interpreted in Adan, covers persecution by non-state agents where the state cannot or will not provide effective protection. Section 2(2)(c) of the Asylum and Immigration Act 1996 must be applied by reference to that proper interpretation; the Secretary of State misdirected himself in certifying that Germany and France would not act otherwise than in accordance with the Convention and therefore the certificates were unlawful.

Divisional Court decisions at first instance (see judgment for particulars); Court of Appeal allowed Adan's appeal and quashed the Secretary of State's certificates and dismissed the Secretary of State's appeal in Aitseguer: [1999] 3 WLR 1274. The Secretary of State's appeals to the House of Lords were given leave and dismissed by the House: [2000] UKHL 67.