Bouheraoua & Anor, R (on the application of) v Secretary Of State For Home Department

When certifying a safe third country for asylum purposes, the Secretary of State must ask whether there is a real risk that the claimant will be sent elsewhere in breach of the Geneva Convention. The decision is reviewed with anxious scrutiny under an enhanced form of Wednesbury review, particularly where fundamental human rights are engaged.

General assurances about a country’s legal policy may be insufficient where concrete evidence suggests that an influential decision-maker has applied an incompatible legal approach. An apparently aberrant decision cannot safely be discounted without a rational evidential basis, such as an explanation from the foreign authorities or its correction by the relevant court.

On appeal, fresh evidence cannot ordinarily be used to make rational a decision that was irrational when made.

Two Algerian nationals claimed asylum in the United Kingdom after passing through Greece. The Secretary of State certified under section 22(C) of the Asylum and Immigration Act 1996 that Greece would not refoule them to Algeria otherwise than in accordance with the Geneva Convention.

The applicants challenged the certificates, relying on evidence that Greek authorities might apply the accountability approach to persecution by non-State agents. Dyson J held that the Secretary of State could not reasonably exclude a real risk that Greece would do so. The Secretary of State appealed. The central issues were the intensity of judicial review and whether a particular Greek decision could rationally be treated as an aberration.

1. Appeals dismissed. The Secretary of State’s application to adduce fresh evidence was refused. The appeals were dismissed with costs, subject to detailed assessment.
2. The applicable review was the enhanced Wednesbury approach described in Regina v Secretary of State for the Home Department, ex parte Canbolat [1997] 1 WLR 1569. The Secretary of State had to evaluate whether the evidence disclosed a real risk that the applicants would be refouled contrary to the Convention. He was entitled to reach his own conclusion, but had to take reasonable steps to inform himself of the relevant facts.
3. The evidence concerning the Greek case of Ali Ali could not rationally be dismissed as an isolated aberration. The decision appeared to apply the accountability approach, had been upheld by a four-member Ministry committee chaired by the Minister’s legal adviser, and had not been explained or quashed by the Greek authorities or courts. Those matters materially weakened the general assurances relied upon by the Secretary of State.
4. The court approved Dyson J’s practical and sceptical assessment of the evidence. General statements of policy could not displace the significance of the concrete decision unless there was a rational explanation for it. The court distinguished the circumstances discussed in Canbolat: that case concerned administrative failures in applying a law accepted as Convention-compliant, whereas Ali Ali suggested that an influential body might have adopted an incompatible legal interpretation.
5. The court treated the observations in Turgut [2000] Imm AR 306 concerning the court’s ability to assess the facts with caution. It was unnecessary to decide whether the court should generally go beyond anxious scrutiny under the enhanced Wednesbury test.
6. Fresh evidence tendered by the Secretary of State on appeal was inadmissible. The issue was the rationality of the original decision on the evidence then available, not whether a different decision could later have been rationally made. The ordinary appellate principles governing fresh evidence applied, consistently with Turgut, Launder [1997] 1 WLR 861 and Ladd v Marshall.

• Court of Appeal (Civil Division): appeals from the decision of Dyson J dismissed. The Secretary of State’s application to adduce fresh evidence was refused.
• Queen’s Bench Division: Dyson J granted the judicial review challenge, holding that the Secretary of State could not reasonably exclude a real risk that the Greek authorities would apply the accountability approach.