Thangarasa (on the application of) v Secretary of State for the Home Department

The House of Lords dismissed two conjoined appeals by Tamil asylum-seekers challenging Home Office certificates under (i) section 2(2)(c) of the Asylum and Immigration Act 1996 (safe third country/non-refoulement) and (ii) section 72(2)(a) of the Immigration and Asylum Act 1999 (certificate that a human rights allegation is manifestly unfounded). The court applied the established principles that the essential question is practical: whether the responsible Member State would, in fact, send the applicant on to a place of persecution otherwise than in accordance with the Geneva Convention or expose him to real risk of treatment contrary to article 3 of the European Convention on Human Rights. The decision emphasised (a) that differences of legal reasoning between states do not necessarily mean the third state will fail to provide practical protection (the result matters more than the route), (b) that the Home Secretary must inform himself and monitor third‑state practice but need not conduct a full merits rehearing when issuing a certificate, and (c) that the screening certificate under section 72(2)(a) is lawful where the Secretary of State is reasonably and conscientiously satisfied the allegation is clearly without substance.

The appeals arise from Home Secretary decisions to remove two Tamil nationals to Germany under the Dublin Convention for determination of their asylum claims. Yogathas challenged a certificate under section 2(2)(c) of the Asylum and Immigration Act 1996 that Germany would not send him on otherwise than in accordance with the 1951 Geneva Convention; Thangarasa challenged a certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 that his allegation of a human rights breach was manifestly unfounded.

Background and facts:

• Both appellants are Tamils from Sri Lanka who previously applied for asylum in Germany before coming to the United Kingdom.
• Yogathas entered Germany in 1999 and had an unsuccessful asylum claim there; the Home Secretary certified under the 1996 Act and directed removal to Germany.
• Thangarasa had been granted asylum in Germany in 1992 but later had that status withdrawn; he arrived in the United Kingdom in 2000 and the Home Secretary directed removal to Germany and certified his human rights allegation as manifestly unfounded under the 1999 Act.

Procedural posture:

• Both appellants lost in the High Court (Richards J in Yogathas, Collins J in Thangarasa) and in the Court of Appeal (judgment given by Laws LJ). Both appeals came to the House of Lords.

Issues framed:

1. Whether Germany should be regarded as a safe third country for non-refoulement purposes given its different approach to persecution by non-state actors (Yogathas; section 2(2)(c) of the 1996 Act).
2. Whether the Secretary of State was entitled to certify an allegation of breach of article 3 ECHR as manifestly unfounded under section 72(2)(a) of the 1999 Act (Thangarasa), bearing in mind Strasbourg authority (TI v United Kingdom) and the procedure's screening nature.

Court's reasoning:

• The House reiterated that the central inquiry is practical: would the responsible state, in practice, send the claimant on to a place where his life or freedom would be threatened otherwise than according to the Convention or under article 3 ECHR. Legal differences in reasoning between Germany and the United Kingdom are not decisive if German domestic law (notably section 53(6) of the German Aliens Act) in practice affords protection against removal to the country of origin.
• On Yogathas' case the court accepted that German practice provided for consideration of internal relocation and demonstrated that, in practice, rejected asylum seekers were not ordinarily expelled to Sri Lanka without such consideration; the Home Secretary had reasonably relied on inquiries and monitoring and was entitled to certify.
• On Thangarasa's case the House held that the Secretary of State lawfully applied a screening test under section 72(2)(a): where the material discloses no substantial grounds and Strasbourg authority (TI) is to the same effect, certification as manifestly unfounded was permissible without a full merits rehearing.

Practical remarks: the judgments note tension between effective operation of Dublin-type arrangements and protection of asylum-seekers; the court stressed rigorous scrutiny in judicial review but recognised the limited, screening role of the Secretary of State under the statutory regimes.

Appeals dismissed. The House held that (1) differences of legal interpretation in Germany concerning attribution of persecution to the State did not necessarily mean Germany would fail to provide practical protection, and the Secretary of State was entitled to rely on inquiries and monitoring in certifying under section 2(2)(c) of the 1996 Act; and (2) under section 72(2)(a) of the 1999 Act the Secretary of State lawfully certified an allegation under article 3 ECHR as manifestly unfounded where, on careful but screening review and in light of Strasbourg authority (TI v United Kingdom), the allegation was clearly without substance.

High Court: Richards J (Yogathas) and Collins J (Thangarasa) dismissed challenges; Court of Appeal (judgment given by Laws LJ, with Chadwick and Laws LJJ and Sir Anthony Evans) dismissed the appeals below; House of Lords dismissed the conjoined appeals [2002] UKHL 36.