R (Asif Javed) v Secretary of State for the Home Department (R (Abid Ali) v Secretary of State for the Home Department, R (Zulfiqar Ali) v Secretary of State for the Home Department)

Subordinate legislation remains amenable to judicial review even where it has been approved by affirmative resolutions of both Houses of Parliament. Bill of Rights 1689, art 9 does not prevent the court from determining whether the statutory conditions for delegated legislation were met.

A power to designate a country as one in which there is in general no serious risk of persecution requires an objectively rational conclusion from the available evidence. The court allows a substantial margin where the statutory language is evaluative, but designation is unlawful if the evidence clearly shows a serious risk affecting a significant part of the population. The designation of Pakistan was unlawful because the evidence established such a risk for women, reinforced by the position of Ahmadis.

Three Pakistani nationals sought judicial review after Special Adjudicators dismissed their asylum appeals against removal directions. Turner J held that each individual determination was irrational and remitted the appeals to fresh Special Adjudicators.

The Secretary of State had certified each claim under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993. The certifications engaged an expedited procedure and depended on Pakistan's inclusion in the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 as a country in which there was in general no serious risk of persecution.

Turner J also held the designation unlawful and quashed the certificates. The Secretary of State appealed only that part of the decision. The common issue was whether parliamentary approval of the Order prevented, or restricted, judicial review and whether the evidence could rationally support Pakistan's designation.

1. Appeal dismissed. Lord Phillips MR delivered the judgment of the Court. Turner J was correct to hold that Pakistan's inclusion in the designated-countries Order was unlawful, and the respondents were entitled to the relief granted.

2. Approval of delegated legislation by affirmative resolution did not make it immune from review. Article 9 of the Bill of Rights 1689 protects parliamentary speech and proceedings, but does not transfer to Parliament the court's function of deciding the legality of subordinate legislation. The court could examine the material available to the Secretary of State and reach a conclusion different from views expressed during parliamentary debate.

3. The words that a country is one in which it “appears” to the Secretary of State that there is in general no serious risk of persecution did not create a subjective and unreviewable discretion. The evidence had to permit a rational conclusion that the statutory state of affairs existed. The issue was one of legality, although the evaluative terms in general and serious allowed a considerable margin of judgment. The claimants nevertheless had to show clearly that a serious risk was a general feature of the country and affected a significant number of its people.

4. The special restraint applied to political and economic judgments approved by Parliament did not create a separate standard of extreme irrationality for all affirmative-resolution Orders. Nor was rigorous review appropriate merely because asylum was involved: unlike an Article 3 removal case, the accelerated procedure itself did not put human rights in issue.

5. The available evidence concerning women in Pakistan, including the findings underlying Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC 629, demonstrated a general and serious risk of persecution arising from widespread violence and the state's failure to provide protection. The evidence concerning Ahmadis added weight. A rational Secretary of State applying the correct test could not conclude that Pakistan was a country in which there was in general no serious risk of persecution.

6. The respondents' delay in seeking judicial review did not justify withholding relief. They had sensibly pursued their statutory appeals first, and the suggested harm to good administration from other possible claims was speculative.

• Court of Appeal: The Secretary of State's appeal was dismissed in [2001] EWCA Civ 789 . The Court upheld the conclusion that Pakistan's designation in the Order was unlawful.
• Administrative Court (Turner J): On 19 January 2001, Turner J held the Special Adjudicators' determinations irrational and remitted the asylum appeals to fresh Special Adjudicators. He also declared the designation and certifications under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 unlawful and quashed the certificates.
• Special Adjudicators: Each had dismissed the relevant appeal against removal directions after the Secretary of State refused asylum.