Regina v Secretary of State for the Home Department, Ex P Thangarasa Regina v Secretary of State for the Home Department, Ex P Yogathas (FC) (conjoined appeals)

A safe-third-country certificate depends principally on the practical risk of onward removal, rather than whether the third country uses identical legal reasoning. Protection supplied through domestic law may suffice, despite a difference in interpreting the Refugee Convention. The decision-maker must investigate and monitor the third country’s practice, applying anxious scrutiny where life or freedom may be endangered.

Under section 72(2)(a) of the Immigration and Asylum Act 1999, a human-rights allegation is manifestly unfounded when it is clearly without substance and bound to fail. Certification is a screening process, but it need not be cursory. Removal through the Dublin system remains unlawful where substantial grounds establish a real risk of direct or indirect exposure to treatment contrary to article 3.

Both appellants were Sri Lankan Tamil asylum seekers who had first applied for asylum in Germany and later sought asylum in the United Kingdom. The Secretary of State proposed to return them to Germany under the Dublin Convention.

Mr Yogathas challenged a certificate under section 2(2)(c) of the Asylum and Immigration Act 1996. He contended that differences between German and British refugee law created a real risk of onward removal to Sri Lanka contrary to the Refugee Convention. Richards J rejected his application for judicial review.

Mr Thangarasa challenged a certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 declaring his human-rights allegation manifestly unfounded. Collins J rejected that challenge. The Court of Appeal, in conjoined appeals, upheld both decisions. The central questions were whether Germany’s law and practice supplied adequate protection against onward removal and whether Mr Thangarasa’s article 3 allegation was bound to fail.

1. Disposition. The House of Lords unanimously dismissed both appeals. Lord Bingham, Lord Hope, Lord Hutton and Lord Scott gave substantially concordant reasons. Lord Millett adopted the reasons of Lord Bingham, Lord Hope and Lord Hutton.

2. Mr Yogathas. Per Lord Bingham, Lord Hope, Lord Hutton and Lord Scott, section 2(2)(c) of the Asylum and Immigration Act 1996 required a practical assessment of whether Germany would return the applicant contrary to the Refugee Convention. The legal route by which Germany supplied protection was not decisive. Although German refugee law differed concerning persecution by non-state agents, section 53(6) of the German Aliens Act protected against concrete individual dangers arising from public or private action. The evidence of German practice and continuing governmental monitoring supported the certificate.

   R v Secretary of State for the Home Department, Ex parte Adan; R v Secretary of State for the Home Department, Ex parte Aitseguer [2001] 2 AC 477 was distinguishable. In that case the interpretative difference would probably have led to the applicants’ return to persecution, and equivalent domestic protection had not been resolved. Differences between national approaches to internal relocation did not themselves establish non-compliance. The Refugee Convention prescribes minimum protection against refoulement and does not require identical treatment of social, economic and civil interests.

3. Mr Thangarasa. Per Lord Bingham, Lord Hope and Lord Hutton, section 72(2)(a) of the Immigration and Asylum Act 1999 established a screening process. An allegation is manifestly unfounded where, after careful consideration of the allegation, its grounds and supporting material, the Secretary of State is reasonably and conscientiously satisfied that it is clearly without substance and bound to fail. The inquiry need not be cursory, but it is not a full merits appeal.

   TI v United Kingdom [2000] INLR 211 addressed materially the same risk. It established that Germany’s practical protection, its compliance with article 3 and the right of individual petition prevented the alleged risk from being sufficiently concrete. The Secretary of State was therefore entitled to certify the allegation.

4. Judicial scrutiny. Per Lord Bingham, Lord Hope and Lord Hutton, removal decisions capable of exposing a person to death, torture or serious ill-treatment require the most anxious scrutiny. That standard remains compatible with giving appropriate weight to the anticipated compliance of a friendly Convention state, provided that the Secretary of State investigates and monitors its practice. The courts below had applied the required rigorous scrutiny.

5. Separate obiter. Lord Scott suggested that a person making a second asylum application in another Member State should disclose the earlier papers and explain why a further application was justified. Lord Bingham, Lord Hutton and Lord Millett reserved their conclusions on whether a second application would constitute an abuse of process. The appeals were not decided on that ground.

1. House of Lords: Both conjoined appeals were dismissed unanimously: [2002] UKHL 36.
2. Court of Appeal: Chadwick and Laws LJJ and Sir Anthony Evans dismissed the conjoined appeals and upheld the rejection of both judicial review challenges. The judgment was delivered by Laws LJ; its citation is not stated in the judgment.
3. High Court: Richards J rejected Mr Yogathas’s challenge to the certificate under section 2(2)(c) of the Asylum and Immigration Act 1996. Collins J rejected Mr Thangarasa’s challenge to the certificate under section 72(2)(a) of the Immigration and Asylum Act 1999.