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)

A safe-third-country certificate cannot rest on the proposition that the Refugee Convention permits a range of reasonable national interpretations. The Secretary of State and the reviewing court must apply the Convention’s single autonomous international meaning.

Persecution may be committed by non-state agents. Refugee protection is engaged where the home state is unwilling or unable to provide effective protection, whether because governmental authority has collapsed or because an existing government lacks capacity. Removal to a third country which will probably return the asylum seeker to the relevant danger constitutes indirect refoulement. A certificate under section 2(2)(c) of the Asylum and Immigration Act 1996 is therefore unlawful where the third country’s interpretation would produce a result inconsistent with the Convention as properly interpreted.

These conjoined appeals concerned certificates authorising the removal of two asylum seekers to safe third countries under section 2 of the Asylum and Immigration Act 1996. Adan, a Somali national, faced probable removal from Germany to Somalia because German law required persecution attributable to a state. Aitseguer, an Algerian national, faced probable removal from France because France similarly required state responsibility or complicity.

The Divisional Court dismissed Adan’s application for judicial review: [1999] Imm AR 114. Sullivan J quashed Aitseguer’s certificate: [1999] I.N.L.R. 176. The Court of Appeal allowed Adan’s appeal and dismissed the Secretary of State’s appeal in Aitseguer’s case: [1999] 3 WLR 1274. Subaskaran’s case added no issue, and leave to appeal to the House was not sought in that case.

Although the Secretary of State had undertaken to determine both asylum claims himself, the House heard the appeals because the issues could recur. The central question was whether section 2(2)(c) permitted reliance on a reasonable foreign interpretation of the Refugee Convention or required application of its true autonomous international meaning.

Held, unanimously dismissing both appeals:

1. Lord Steyn delivered the leading speech. Lord Hobhouse agreed with his conclusions and the substance of his reasoning, while Lord Scott agreed with both speeches. Lord Slynn reached the same conclusion by substantially the same approach. Section 2(2)(c) of the Asylum and Immigration Act 1996 required the third country’s conduct to accord with the Refugee Convention as properly interpreted. It did not permit certification merely because that country’s interpretation was reasonable, legitimate or arguable.

2. Per Lord Steyn, a multilateral treaty has an autonomous international meaning. Its terms must be construed in good faith, in context and in the light of the treaty’s object and purpose and relevant rules of international law. National courts must determine that meaning where no authoritative international ruling or uniform state practice exists. Comity does not authorise the United Kingdom to apply an interpretation which it considers inconsistent with the Convention.

3. The House applied Adan v Secretary of State for the Home Department [1999] 1 AC 293. Article 1A(2) protects a person persecuted by non-state agents where the home state is unwilling or unable to provide effective protection. There is no material distinction between the complete collapse of governmental authority and the inability of an existing government to provide protection. Lord Steyn noted that, in civil-war cases, ordinary exposure to conflict remains insufficient without a differential impact for a Convention reason.

4. Applying R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, article 33 prohibits indirect as well as direct refoulement. Germany and France would probably return the respective applicants because they applied a state-accountability requirement inconsistent with the Convention’s proper meaning. The Secretary of State had therefore misdirected himself in law, and the certificates could not satisfy section 2(2)(c).

5. Lord Hutton reached the same result by an additional route. Applying the principle of legality, he considered the statutory wording ambiguous and insufficiently explicit to remove the important Convention right against refoulement.

6. The decisions authorising removal were quashed. The House expressed no opinion on whether alternative forms of protection in Germany or France would have sufficed. Lord Steyn and Lord Hobhouse emphasised that less clear-cut cases may involve fact-sensitive predictions and evaluative judgment, but the present agreed facts disclosed an error of law.

1. House of Lords: In R v Secretary of State for the Home Department, Ex p Adan; Ex parte Aitseguer [2001] 2 AC 477, the House unanimously dismissed the Secretary of State’s appeals and upheld the quashing of the certificates.
2. Court of Appeal: In R v Secretary of State for the Home Department, Ex parte Adan; Ex parte Aitseguer [1999] 3 WLR 1274, the court allowed Adan’s appeal and dismissed the Secretary of State’s appeal in Aitseguer’s case. It held that the two cases were legally indistinguishable. Subaskaran’s case added nothing material and was not appealed to the House.
3. High Court—Adan: The Divisional Court dismissed Adan’s application for judicial review: [1999] Imm AR 114.
4. High Court—Aitseguer: Sullivan J quashed the certificate authorising Aitseguer’s removal to France: [1999] I.N.L.R. 176.