R (Yogathas) v Secretary of State for the Home Department (R (Thangarasa) v Secretary of State for the Home Department)

For certification under section 2(2)(c) of the Asylum and Immigration Act 1996, the focus is the practical outcome of removal. The question is whether the third country will unlawfully refoule the claimant, not whether it applies identical asylum procedures or interpretations.

Different national approaches to internal flight do not alone prevent certification where the evidence supports the required protection in practice. A system may be assessed by its usual operation without proof of an invariable practice.

Under section 72(2)(a) of the Asylum and Immigration Act 1999, a claim may be manifestly unfounded despite requiring a responsive summary assessment of numerous allegations or materials.

These conjoined appeals concerned Tamil asylum-seekers from Sri Lanka and their proposed removal to Germany under the Dublin arrangements.

In Yogathas, Germany had accepted responsibility for examining the asylum claim. The Secretary of State certified under section 2(2) of the Asylum and Immigration Act 1996 that Germany would not send the claimant elsewhere contrary to the Refugee Convention. The challenge focused on Germany’s treatment of persecution by non-state agents and its internal-flight procedures.

In Thangarasa, the claimant had previously obtained asylum in Germany, but Germany later decided that he could return to Colombo. After his arrival in the United Kingdom, the Secretary of State directed removal under section 11(2) of the Asylum and Immigration Act 1999 and certified his human-rights claim as manifestly unfounded under section 72(2)(a).

Richards J and Collins J rejected the respective applications. The central questions were whether Germany’s protection arrangements were sufficient and whether the Article 3 claim was manifestly unfounded.

Lord Justice Laws delivered the leading judgment. Sir Anthony Evans and Lord Justice Chadwick agreed. Both appeals were dismissed.

Yogathas

1. Statutory focus. Section 2(2)(c) of the Asylum and Immigration Act 1996 was directed to the practical outcome of removal. The question was whether Germany would send the claimant to another country otherwise than in accordance with the Refugee Convention. The provision did not require Germany to adopt the same interpretive approach or asylum procedure as the United Kingdom. The argument that any difference in German Convention interpretation automatically invalidated removal rewrote the statute.
2. Alternative protection. Protection available under section 53(6) of the German Aliens Act could be relevant. If German authorities properly and reasonably examined the feared conduct and available protection, it was immaterial that the assessment occurred under domestic law rather than under Article 1A(2) of the Refugee Convention.
3. Evidence and internal flight. The Secretary of State was entitled to rely on the ordinary operation of the German system. It was unnecessary to establish an invariable practice. The evidence supported the conclusion that internal flight would ordinarily be considered. The court’s task was to decide whether the Secretary of State could lawfully reach that conclusion, not to substitute its own assessment of the merits.
4. The Convention did not require a single unitary factual standard for internal flight. Differences between the English test of whether relocation would be unduly harsh and the German approach did not, without more, prevent certification. Internal flight arose only after identifying an area where the claimant would not face Convention persecution. The appeal in Yogathas was dismissed.

Thangarasa

5. Manifestly unfounded claims. The court declined to treat the passage from Vallaj as laying down a general rule that certification was lawful only after an initial and fairly quick examination. A claim could be manifestly unfounded where, after consideration proportionate to the nature and volume of the case, there was plainly nothing of substance in it. The process was not a full trial or exhaustive merits determination, but voluminous material and numerous allegations did not themselves prevent summary certification.
6. The German arrangements, including section 53(6) protection and ordinary consideration of internal flight, together with available legal safeguards, supported the conclusion that there was no sufficiently concrete risk of removal contrary to Article 3. The reasoning in [2000] INLR 211 in TI v United Kingdom reinforced that conclusion. Collins J was right to reject the judicial review claim, and the appeal was dismissed.

Orders were made under section 11 of the Access to Justice Act 1999, with the amount payable by each appellant set at nil. Permission to appeal to the House of Lords was refused.

• Court of Appeal: In [2001] EWCA Civ 1611, Laws LJ, with Evans LJ and Chadwick LJ agreeing, dismissed both appeals.
• High Court, Administrative Court: Richards J dismissed the challenge in Yogathas on 25 May 2001. Collins J dismissed the challenge in Thangarasa on 5 June 2001.