Abdi & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [1996] UKHL 9

House of Lords

Between

Abdi & Anor, R (on the application of)Appellant

Secretary of State for the Home Department & AnorRespondent

Before

Lord Keith of Kinkel

Date 15 February 1996

For the reasons given in the speech to be delivered by my noble and learned friend Lord LIoyd of Berwick, which I have read in draft and with which I agree, I would dismiss these appeals.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lloyd of Berwick. For the reasons which he gives, I would dismiss these appeals.

LORD MUSTILL

My Lords,

The relevant facts and contentions are fully set out in the speeches of my noble and learned friends, and in the judgments delivered in the Court of Appeal. I need not repeat them, and will proceed directly to my conclusions.

On the first question concerning the suggested duty of the Secretary of State to disclose all material information, whilst I share the hesitation expressed by Neill L.J. I am persuaded that in the very special context of this abbreviated procedure no such duty can be implied, and therefore agree with the majority in the Court of Appeal and with the opinion of my noble and learned friend Lord Lloyd of Berwick.

I must however disagree on the remaining question, which, although arising in the context of this individual application for asylum, is in my judgment of very real general importance. It will be recalled that the only evidence adduced in support of the assertion by the Secretary of State that the claim for asylum was "without foundation" was a letter written on his own behalf to the following effect, at p. 420:

"The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention. "

My Lords,

to contend that such a statement is evidence sufficient to justify a finding favourable to the Secretary of State in his contest with the appellant before the Special Adjudicator amounts to this: that the Secretary of State knows what he is talking about and that the Adjudicator should take his word for it. True the procedure was truncated, and true also that hearsay evidence was admissible, but the procedure was none the less adversarial. Plainly the Secretary of State cannot be contending that, in the absence of express statutory provision, a bare statement of honest belief by one party to an adversarial procedure is sufficient to prove the fact asserted, and equally plainly the Secretary of State would shrink from conceding that a similar statement would be sufficient to carry the day for the appellant, the other party to the issue. It must therefore be the proposition that there is something unique in the position of the Secretary of State which transmutes a statement of belief into an item of evidence. No authority was cited in support of this notion, which I find disturbing, the more so for its distant echo of Liversidge v. Anderson [1942] 2 A.C. 206. I do not accept it, and since in this case nothing other than the letter was adduced in support of the decision under appeal I agree in this respect with the judgment of Steyn L.J. and with the opinion on this point of my noble and learned friend Lord Slynn of Hadley. I would allow the appeals.

LORD SLYNN OF HADLEY

My Lords

This appeal, with the leave of the Court of Appeal, raises important issues in relation to proceedings brought before Special Adjudicators by those seeking asylum in this country.

The facts of the two appeals are fully set out in the judgment of Neill L.J. to which I refer. For present purposes it is sufficient to summarise them. Both appellants lived in Somalia of which they were nationals. They left Somalia, one in 1992 the other in 1993, and they went via one or more countries to Spain where they stayed, one for three days and one for eight days. On 25 November 1993 they flew to London where they claimed asylum on the grounds that they feared persecution in Somalia. Each received a letter from the Asylum Division of the Immigration and Nationality Department of the Home Office reciting the claim for asylum and continuing:

"However, Somalia is not the only country to which you can [be] removed. You arrived from Spain where you spent [three] [eight] days. You are, under paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971, returnable to Spain which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.

"The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences of returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention. "

Having referred to paragraph 180K of the Immigration Rules the letter continued:

"The Secretary of State can find no grounds for departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention. "

In Mr. Abdi's case, counsel having appeared for the appellant and the respondent, the Special Adjudicator, Mr. John Fox, found that the appellant had had an opportunity to claim asylum in Spain but he had chosen not to do so. As to whether Spain was a safe country he said that Mr. J. Harper of the Home Office had "relied on the facts as set out in the letter of 29 November 1993," the letter referred to above. Mr. Fox concluded "I am satisfied from the totality of the evidence before me that Spain will comply with her obligations under the 1951 Convention."

Mr. Gawe appeared in person on his appeal. The Special Adjudicator.

Mr. V. Callender, directed himself that his first task was to decide whether or not he agreed with the Secretary of State's certificate. He rejected an argument that to refuse to consider the claim substantively was a breach of the Convention and he held that the onus on the Secretary of State, of showing that paragraph 180K was satisfied, was:

"discharged by the statement of the Secretary of State's letter of refusal dated 1 December 1993 and in the absence of any material before me to indicate that Spain might not fulfil her Convention obligations there is no such material .... there is no evidence before me to suggest that Spain is not a safe country within the provisions of Paragraph 180K of H.C.725."

He too found that Mr. Gawe had had an opportunity to apply for asylum in Spain and that he had not done so.

On applications for judicial review Sedley J. quashed both the certificates of the Secretary of State and the decisions of the Special Adjudicators. The Court of Appeal held that the Secretary of State's certificate should not be quashed and allowed the appeal to that extent. Neill L.J., though troubled about aspects of the procedure adopted, and Gibson L.J. restored the orders of the Special Adjudicators. Steyn L.J. would have quashed their decisions.

Following the applications for judicial review the Secretary of State agreed to review their cases on the merits so that the outcome of these appeals will not directly affect the appellants. The appeals do, however, raise what counsel for the Secretary of State in the Court of Appeal accepted (per Steyn L.J.) was a question of fundamental importance and a very difficult case.

By Article 33 of the Geneva Convention relating to the Status of Refugees of 1951 the contracting States, including the United Kingdom, undertook not to expel or return a refugee to the frontiers of territories "where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. "

By Section 8(1) of the Asylum and Immigration Appeals Act 1993

"A person who is refused leave to enter the United Kingdom under the [Immigration Act 1971] may appeal against the refusal to a Special Adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."

Special Adjudicators are those adjudicators appointed under the 1971 Act who are assigned by the Lord . Chancellor to hear asylum appeals, being appeals brought under sub-sections 8(1) to (4) of the 1993 Act; the procedures laid down in the 1971 Act are modified in a number of ways when Special Adjudicators are dealing with asylum appeals. Thus, in particular. Rule 8(1) of the 1984 Rules which requires the respondent to an immigration appeal to cause to be prepared "a written statement of the facts relating to the decision or action in question and the reasons therefor" and to supply it to the adjudicator and the appellant does not apply in relation to asylum appeals under section 8 ..

Moreover, paragraph 5(4) of Schedule 2 to the 1993 Act authorises special provision to be made by rules of procedure in respect of appeals under inter alia section 8(1) of the 1993 Act in cases where the Secretary of State, in dealing with a person's claim that his removal would be contrary to the United Kingdom's obligations under the Convention, certifies that such a claim is without foundation in the sense that it does not raise any issue as to the United Kingdom's obligations under the Convention or is otherwise frivolous or vexatious. Further, no appeal lies to the Immigration Appeal Tribunal from a decision of the Special Adjudicator that the claim is without foundation.

By the 1993 Rules certain of the time limits laid down for dealing even with asylum appeals are reduced when an appeal is made under section 8(1) of the 1993 Act or when the appeal is against a certificate of the Secretary of State that the claim under section 8(1) is without foundation. Thus in each case the time limit for giving notice of appeal is two days rather than ten days. When the Secretary of State has given such a certificate the notification of the hearing date must be given in three days rather than five days and the appeal must be determined in seven days rather than forty two days, though these periods for giving notice of appeal and for the determination of the appeal may be extended if, respectively, the interests of justice or fairness require it (Rule 6(7) and Rule 31(1) of the 1993 Rules).

On the other hand some of the provisions of the 1984 Rules are retained. Rules relating to the conduct of the procedure, and particularly those contained in Articles 25 to 36 of the 1984 Rules, are incorporated in asylum appeals. Thus the Special Adjudicator has power under Rule 25 to order particulars to be given by any party to the appeal and to summon a person to attend as a witness and to produce any documents in his custody or under his control which relate to any matter in question in the appeal, so long as those documents could have been ordered to be produced in the trial of an action in the courts. There is no general provision as to discovery in the 1984 or the 1993 Rules but by Rule 5(6) of the latter the Secretary of State must send to the appellant in any asylum appeal the notice of his decision, the reasons for it and the original or copies of any notes of interview and of any other document referred to in the decision which is being appealed.

Part XIII of the Statement of Changes in Immigration Rules (H. C. 725) of 5 July 1993 sets out the Secretary of State's practice in relation to the grant or refusal of asylum. In particular in paragraph 180D it is stated that the:

"Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country does not raise any issue as to the United Kingdom's obligations. under the Convention."

By paragraph 180K in respect of Third Country cases

"If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

a. the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection; or

b. there is other clear evidence of his admissibility to a third country. "

Further, by paragraph 180M if a person has been refused asylum by another party to the Convention his application for asylum here may be refused "without substantive consideration of his claim to refugee status [and he] may be removed to that country, or another country meeting the criteria of paragraph 180K."

The first and principal question is, thus, whether under this procedure the Special Adjudicator is required to consider the material in the possession of the Secretary of State relevant to his certification that the claim that a particular country was not a "safe country" was without foundation.

If Parliament is to be read as having deliberately laid down an exclusive, all embracing code for the conduct of appeals to the Special Adjudicators then in principle it would be wrong to read in further obligations because the resulting procedures do not seem with experience to be satisfactory. Whether Parliament has done so depends, in my view, on an analysis of what is the real role and function of the Special Adjudicators on the hearing of these appeals.

It is agreed, and rightly agreed, that the Special Adjudicator is not limited to checking whether the Secretary of State has some material on which he might give such a certificate. He must make an independent judgment and consider de novo whether he is satisfied that the country was a safe country. As Laws J. put it in Reg. v. Secretary of State for the Home Department, Ex parte Mehari [1994] Q.B. 474,490:

"the discipline which this system imposes upon the Secretary of State consists in the fact that the Adjudicator must independently judge the merits of the certificate."

Glidewell L.J. in Reg. v. Home Secretary, Ex parte Thavathevathasan [1994] Imm.A.R. 249, 254 said in relation to the function of a Special Adjudicator:

"Clearly the Special Adjudicator is not bound by the Home Secretary's certificate. In other words, he does not merely wield a rubber stamp. He must consider whether, on the material before the Home Secretary, and on any other material before him (if it is proper for him to admit any) the conclusion which the Home Secretary reached is justified. The adjudicator, in other words, is bound to consider the issue which he has to determine on its merits."

It is, therefore, not appropriate to lay on the appellant the burden of casting doubt on the Secretary of State's decision. It is for the Secretary of State to show that the decision was the right one for the Special Adjudicators to adopt for themselves. That is the nature of their enquiry. The gravity of their enquiry was recognised by Lord Bridge of Harwich in Reg. v. Home Secretary, Ex parte Bugdaycay

[1987] AC 514

at p. 531, (" Re Musisi ") when he considered the role of the court in dealing with decisions relating to claims for asylum.

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

In similar vein Bingham L.J. in Reg. v. Home Secretary, Ex parte Thirukumar [1989] Imm.A.R. 402 at p. 414 said "asylum decisions are of such moment that only the highest standards of fairness will suffice."

From these passages, with which I agree, it seems to me plain that prima facie the Special Adjudicator must have the relevant material available to the Secretary of State if he is properly to carry out his function of deciding whether on the material before the Secretary of State (and on any admissible extra material) the decision of the Secretary of State was the correct one. And they must no less have it, and make the substance of it available to the appellant, if the proceedings are to be conducted fairly. An appellant is required frankly to disclose relevant information to the immigration officer; on these appeals what is sauce for the goose is sauce for the gander and prima facie there is no reason why the appellant and the Special Adjudicator should not see the material on which the Secretary of State took his decision.

It is said, however. that there are at any rate two reasons why this should not be the position. The first is that Parliament has excluded such an obligation on the Secretary of State; the second is that such a course would be unrealistic and impracticable.

It is clear that Parliament has not provided expressly for such material to be laid before the Adjudicator. That, however, is not conclusive if the nature of the function imposed on him by Parliament and "fair play in action" require that such material should be made available. The question is therefore whether the procedures prescribed for these appeals against the Secretary of State's certificate by necessary implication exclude such an obligation. There are pointers in that direction. The intention is clear that these appeals should be dealt with quickly. That is desirable on any view as unmeritorious applicants who are refused admission should be sent away quickly or it may never be possible to send them away. It is also not in their interests that they should be kept waiting for a long time. Omitting the obligation to prepare an explanatory statement is clearly intended to shorten the proceedings since the preparation of this document can take a long time in a complicated case.

Yet there is no absolute distinction between ordinary immigration appeals and these "without foundation" cases. In the first place Parliament has provided that the Special Adjudicators can, in order to achieve justice or fairness, extend the times laid down for the latter type of case. In the second place Parliament has provided that in ordinary immigration appeals the explanatory statement may be dispensed with if the immigration officer "is of the opinion that it is not practicable [to prepare and provide such a statement] having regard to the time available before the hearing of the appeal". (Rule 8(2) of the Immigration Appeals (Procedure) Rules 1984).

In my view the justified wish to give a quick refusal to hopeless applications for asylum cannot override the importance of giving due consideration to those applications for asylum which are or may be genuine and well founded. The time limits are not therefore conclusive.

Nor do I consider that the reference to specific and very limited documents which must be supplied by the Secretary of State under the Rules indicates that there is no justification for requiring other documents to be produced. The Special Adjudicator has the power to order particulars and the attendance of witnesses with documents. In my view even more the nature of the Special Adjudicator's task in reviewing the Secretary of State's certificate makes it necessary that the material available to the Secretary of State should be available to the Special Adjudicator.

It is objected that this is wholly impracticable. The Secretary of State has been held entitled to obtain information from many sources including diplomatic, official and other channels. ( Reg. v. Home Secretary, Ex parte Sivakumaran

[1988] AC 958

and Dursun v. Secretary of State for the Home Department [1993] Imm.A.R. 169) and it is possible that he may have much information on other countries.

However the question whether a country is a safe country is a limited, though very important, area of enquiry. Their Lordships have been told that it is now the practice of the Secretary of State to provide to a Special Adjudicator on these appeals a bundle of documents which normally is about fifty pages relating to the issue whether the country in question is a safe country. But the documents provided are limited to those which support the Secretary of State's decision. They do not include documents which support, or which may support, the appellant's contention that the third country to which it is proposed to send him is not a safe country. A Special Adjudicator does not therefore have this latter material when reviewing the certificate.

In principle I find this unacceptable. Would it be impracticable to require it? I am not satisfied that it would. If the Secretary of State has overriding or wholly dependable and consistent evidence that a country is a safe country then he is unlikely to have a lot of material the other way. If he does the evidence against the appellant's contention may be the less reliable. If there is little information in favour of the appellant it will not be difficult to produce; if there is strong evidence in favour of the appellant's contention that the third country is not a safe country (and which is not or is not likely to be available to him so that he cannot give it to the Special Adjudicator) the Special Adjudicator ought to be shown it by the Secretary of State. If as I understand (although their Lordships have not seen them) these bundles of documents relating to specific third countries are in the same basic form in each case I am not persuaded that it is impracticable to update them as time goes on or that the provision of these "standard bundles" is likely to cause delay. If there is a lot of strong material that a country is not safe then the Secretary of State is unlikely to find that it is so; if he does then it is patently important that the Special Adjudicator should have the material.

Production of this material can be limited to that which actually shows, or in a real sense indicates, that a country is not a safe country. I agree with Steyn L.J. that we are not here dealing with rumour and gossip but of "fair disclosure of material facts available to the Asylum Division of the Home Office, which monitors such matters." The question - "Could this support the appellant's contention that X is not a safe country?" - seems to me a reasonable test.

If it is possible to give information which supports the Secretary of State's decision I wholly fail to see why to disclose material supporting or tending to support the appellant's contention frustrates the aim of Parliament.

It is suggested that this result can be achieved by leaving it to the Special Adjudicators to ask if they want further material. They have made it clear in their written representations in the appeal to your Lordships that they have already a number of sources of information including "Background information prepared by the Foreign and Commonwealth Office on approximately 24 countries held by all Special Adjudicators." It is not clear that this is the same as the particular bundles prepared for "without foundation" appeals. If it is it does not contain material other than that supporting the Secretary of State's case. If (as I think) it is not, then it will only partially be supplemented by the extra bundle. The Special Adjudicators obviously have a difficult job and they are anxious to deal with these appeals fairly. As they say in their written representations "If the result of requiring further material is that the particular appellant is less likely to be returned to a safe third country, that is the inevitable outcome of the need to deal with the appeals fairly."

A possible compromise course is to leave it to the Special Adjudicators to ask for what they want. I do not find this satisfactory. In the first place they will get, without asking, the material supporting the Secretary of State's decision. They should get the rest. This means that they must ask in every case in order to be certain that they have it. If they do not ask in every case there is a risk that in the cases in which they do not ask something of importance will not be seen. Moreover, if they are required to ask, they have first to study the case to know if they want extra material; then they must ask and wait for the Home Office to provide the material. Far from shortening the proceedings as compared with the automatic provision of the relevant documents it is likely to delay it. Such a course does not aid the speedy determination of the appeal.

Reference has been made to the role of the United Nations High Commissioner for Refugees as contemplated by the 1993 Rules (paragraphs 5(6) 6(1) and 8(2)) and to the work of the Refugee Legal Centre. Both are very important but the former cannot be expected to investigate the detail of every case and the latter is hampered if documents are not provided and background knowledge is incomplete.

I take the view accordingly with Steyn L.J. that the current procedure is not such as to enable the Special Adjudicators fully to perform their task and is calculated to produce unfairness. I would quash the Special Adjudicator's decision in both cases on that ground without in any way reflecting on the care with which they personally conducted these appeals.

The second ground relied on is that there was no sufficient material on which the Special Adjudicators could be satisfied that the "no foundation" certificates were justified. The only material before the Secretary of State was the statement in the letters to the appellants:

"The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention. "

I do not consider that the Secretary of State is bound to give great detail of previous cases and of the policies and practices of the country in question. Here, however, he has given nothing more than that on the basis of his unexplained knowledge and previous experiences he has no reason to believe that the Convention would not be observed. Without some detail it is almost impossible for the appellant to challenge or for the Special Adjudicator to assess de novo what he says (no doubt bona fide) is believed to be the position. This really is no more than the ipse dixit of the Secretary of State which may well be right but it is not itself evidence upon which that statement is based. Despite some initial hesitation, I have come to the same conclusion as Steyn L.J. that there was here no evidence before the Special Adjudicators upon which they could independently be satisfied that the "no foundation" certificates were justified.

It has also been contended in these proceedings that the certificates of the Secretary of State should be set aside. I am not persuaded that this is right as a substantive matter but in any event it seems to me that the proceedings for judicial review are properly directed to the decisions of the Special Adjudicators. I would, as I have said, have set aside those decisions and I do not think it appropriate to consider the Secretary of State's certificates.

Accordingly I would allow the appeals in respect of the Special Adjudicators' decisions. I consider that the Court of Appeal came to a correct conclusion in refusing to quash the Secretary of State's certificates.

LORD LLOYD OF BERWICK

My Lords

This case concerns the new procedure for dealing with asylum appeals introduced by the Asylum and Immigration Appeals Act 1993. Under section 8(1) of that Act a person who has been refused. leave to enter the United Kingdom under the Immigration Act 1971 may appeal against that refusal on the ground that his removal would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees, commonly known as the Geneva Convention.

Article 33 of the Convention

provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. "

Appeals under section 8(1) of the 1993 Act lie to a special adjudicator. The procedure is spelt out in Schedule 2 and the Asylum Appeals (Procedure) Rules 1993. Paragraph 5 of Schedule 2 makes provision for a special appeal procedure where the Secretary of State certifies that the claim is without foundation. Paragraph 5(3) provides:

"For the purposes of this paragraph a claim is without foundation if (and only if) - (a) it does not raise any issue as to the United Kingdom's obligations under the Convention; or (b) it is otherwise frivolous or vexatious."

The special feature of "without foundation" appeals is that the time limits are much shorter. Thus the time limit for serving notice of appeal is two days instead of ten (Rule 5(2)), the period within which the special adjudicator must notify the date, time and place fixed for the hearing of the appeal is three days instead of five (Rule 6(2)) and the appeal must be determined within seven days instead of 42 (Rule 9(2)). The reason for and significance of these shortened time limits for "without foundation" appeals will become apparent later.

The main issue in the present appeal is whether the Secretary of State is obliged to give discovery of the material on which he has based his without foundation certificate. That issue was decided by Sedley J. in favour of the appellants. But his decision was reversed by a majority of the Court of Appeal (Neill L.J. and Peter Gibson L.J.). Steyn L.J. dissented.

There is a subsidiary issue whether there was evidence on which the special adjudicator could uphold the decision of the Secretary of State in the two cases under appeal. But before coming to either of these issues I must first describe the background.

The appellants, Mr. Abdi and Mr. Gawe, are nationals of Somalia.

Mr. Abdi left Somalia on 10 November 1993 and flew to Spain via Kenya and Egypt. He arrived in Spain on 22 November. He remained in Spain for three days. He did not claim asylum. He arrived in the United Kingdom on 25 November, and was interviewed on arrival. On 29 November the Immigration and Nationality Department of the Home Office wrote as follows:

"You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Somalia for reasons of race, religion, nationality, membership of a particular social group or political opinion.

However, Somalia is not the only country to which you can be removed. You arrived from Spain where you spent three days. You are, under paragraph 8(1)(c) of Schedule 2 to the Immigration Act 1971, returnable to Spain which is a signatory to the 1951 UN Convention relating to the Status of Refugees.

The Secretary of State, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention.

Paragraph 180K of the Immigration Rules provides that an application will normally be refused without substantive consideration if there is a safe third country to which the applicant can be sent. The Secretary of State can find no grounds for departing from this practice in your case. He therefore hereby certifies that your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention. "

Paragraph 180K of the Immigration Rules (HC725), which is accurately paraphrased in the last paragraph of the above letter, provides as follows:

"Third Country Cases

If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of

Article 33 of the Convention

) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

(a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection; or

(b) there is other clear evidence of his admissibility to a third country.

Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant. "

It is not in dispute that paragraph 180K, if properly invoked, complies with the United Kingdom's obligations under the Geneva Convention. Nor is there any issue as to the correct interpretation of paragraph 5(3)(a) of Schedule 2 to the 1993 Act.

Mr. Abdi exercised his right to appeal against the Secretary of State's certificate as set out in the last paragraph of the letter. The appeal came before Mr. John Fox as special adjudicator on 23 December. It was determined the same day. Mr. Abdi was represented by counsel at the hearing of the appeal. It would appear from the special adjudicator's written reasons that the main point taken on Mr. Abdi's behalf was that he had not had an opportunity to claim asylum "at the border or within the territory of a third country" i.e. Spain, and that as a consequence the requirements of Rule 180K had not been met. The special adjudicator rejected this argument. He found that Mr. Abdi had had ample opportunity to claim asylum as he was led through immigration control in Spain, and thereafter, but he chose not to exercise that opportunity. There was no evidence before the special adjudicator that Spain was not a safe third country within the meaning of paragraph 180K. Mr. Abdi could therefore be returned to Spain, and substantive consideration would be given to his claim for asylum in that country .

The facts relating to Mr. Gawe are similar, except that he left Somalia in 1992, and arrived in Spain on 17 November 1993. He arrived in the United Kingdom on the same day as Mr. Abdi. So he had spent 8 days on Spanish territory. The letter from the Immigration and Nationality Department was dated 1 December 1993, and is in identical terms to the letter in Mr. Abdi's case. Mr. Gawe's appeal was heard by Mr. Callender. Mr. Gawe was unrepresented. But the issues were the same. According to Mr. Callender there was compelling evidence that Mr. Gawe had had an opportunity to claim asylum during his eight days in Spain. But he did not do so. There was nothing to suggest that Spain was not a safe third country. Accordingly he upheld the Secretary of State's Certificate, and dismissed Mr Gawe's appeal.

On 25 January 1994 Mr. Abdi and Mr. Gawe were each granted leave to apply for judicial review of the Secretary of State's Certificate and the special adjudicator's d~termination. The grounds of application were, first, that neither the Secretary .of .State nor the special adjudicators had given proper consideration to the question whether the applicants had had an opportunity to seek asylum in Spain. The second ground of application was that they had not given proper consideration to the question whether Spain was a safe third country. The cases were heard together by Sedley J. on 23 and 24 February 1994. The first ground of application was not pressed. But the argument in support of the second ground ranged widely.

In deciding in favour of the applicants on the second ground. Sedley J. founded himself on the principle stated by Lord Bridge in Re Musisi

[1987] AC 514

at 531 as follows:

"The Court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny. "

Two quotations must suffice to illustrate the strength and direction of the judge's reasoning:

"In a situation in which it is to be expected that most or all of the information about the asylum practices of third countries is in the hands of the Secretary of State, it would make a mockery of the special adjudicator's independent duty of rigorous scrutiny if the Secretary of State, having balanced the pros and cons and come to his own conclusion about the safety of a Third Country, could rely upon the face of the certificate which he accordingly grants as sufficient to sustain the certificate on appeal, so long as the asylum-seeker is unable to produce enough of his or her own evidence to controvert it. "

A little later he said:

"Correspondingly, given the Secretary of State's monitoring role and his opportunities to gather information through other organs of government, in particular the Foreign and Commonwealth Office, it is incumbent, in my view, on the Home Office representative before a special adjudicator to disclose not only what facts are relied on in support of the certificate (and they may in many cases be simply that nothing at all is known to the detriment of the Third Country), but to disclose any factual material pointing in the opposite direction. The fact that the Secretary of State will himself have considered such material and rejected it in issuing his certificate cannot be relevant: if it were, the special adjudicator would become the handmaiden of the Secretary of State, incapable of exercising independent judgment except where an applicant was independently able to cast doubt upon the basis of the certificate. "

The judge then referred to the case of two refugees who had come to the United Kingdom from Colombia via Spain, and who were returned to Spain as a safe third country. According to a report of Amnesty International the two refugees were returned from Spain to Colombia without any substantive consideration of their claim for asylum. Sedley J. commented:

"The asylum-seekers evidently did not know of the two cases: the Home Office, which I infer did know, did not consider itself under any obligation to draw them to the attention of the adjudicator; and if the adjudicator knew of them, he took them in each case to be off limits because they had not been canvassed in evidence. If this was the situation, I cannot believe that any reasonable observer would think that it had much to do with the standards of scrutiny and fairness which Lord Bridge was describing in Re Musisi , or indeed represented anything but legalistic technicalities. "

Sedley J. concluded that neither Mr. Abdi nor Mr. Gawe had had a fair hearing, and that the decisions of the two adjudicators fell to be quashed for breach of natural justice.

"In each case the asylum-seeker was entitled to disclosure by the Secretary of State and the adjudicator was entitled to his assistance. The Secretary of State was in a position to afford these, but they were not afforded. "

Sedley J. went on to hold that the certificates of the Secretary of State should also be quashed, on the ground that his decision was logically untenable, and therefore irrational in law.

In the Court of Appeal Steyn L.J. agreed with Sedley J. as to the determination of the adjudicators, but disagreed with him as to the certificate of the Secretary of State. As to the adjudicators Steyn L.J. held that Parliament must have intended to create an effective system for safeguarding the fundamental rights of refugees. If the system set out in the legislation is not by itself effective for that purpose, then it must be supplemented by the common law in aid of procedural fairness. Fairness requires that the Secretary of State should disclose all material facts tending to prove or disprove the safety of the third country in question. Steyn L.J. concluded:

"For my part I am satisfied that the procedure in fact adopted is so unfair as to be unlawful: see R. v. Monopolies and Mergers Commission , Ex parte Elders IXL Ltd. [1987] 1 W.L.R. 1221 at 1242 D. The consequence of the procedure in fact adopted in the cases before us, and habitually adopted in all other similar cases, is to render ineffective fundamental rights of asylum seekers."

Before turning to Mr. Pannick's submissions in support of the majority judgments in the Court of Appeal, it is necessary to set out some further legislative provisions. The procedure which governs the general run of appeals under part II of the Immigration Act 1971 is contained in the Immigration Appeals (Procedure) Rules 1984. Under Rule 8(1) the Secretary of State is obliged .. to serve an explanatory statement setting out the facts relating to his decision; and the reasons therefor. Nowhere in the 1984 rules is there any provision requiring the Home Secretary to give discovery of relevant documents. Instead the adjudicator and the Immigration Appeal Tribunal can require Secretary of State to furnish particulars which are necessary for the determination of the appeal (Rule 25), and can require the attendance of a witness to answer any question on behalf of the Secretary of States, and produce any document in his custody (Rule 27). When it came to the making of new Rules for asylum appeals, the 1984 Rules were disapplied en bloc: see Rule 3(2). Nowhere in the 1993 Rules is there any provision corresponding to Rule 8(1) of the 1984 Rules. It could not be suggested that the failure "to reenact" Rule 8(1) of the 1984 Rules was an accidental omission. For the 1993 Rules makes specific provision for the reenactment of Rule 25 (power to require particulars) and Rule 27 (summoning of witnesses), but not Rule 8(1).

Mr. Pannick submits that the implication is clear. By approving the 1993 rules Parliament must have intended to relieve the Secretary of State of his obligation to serve an explanatory statement in the case of asylum appeals. Mr. Macdonald argues that the reason for the omission may have been to save time. But the difficulty with that explanation is that the omission applies to all asylum appeals under the 1993 Act, not just "without foundation" appeals. In any event if, as Mr. Macdonald submits, the Secretary of State is obliged to disclose all material facts for the purpose of asylum appeals, an explanatory statement would be as quick a method for serving that purpose as any other. I cannot reconcile the omission of any requirement to serve an explanatory statement of facts, such as exists under Rule 8(1) of the 1984 Rules, with an implied obligation on the part of the Secretary of State to disclose the same material facts by some other means.

I turn to the question of discovery. The 1993 Rules do not impose on the Secretary of State any obligation to give discovery, any more than the 1984 Rules. But there is specific provision for the disclosure of particular documents. Under Rule 5(6) of the 1993 Rules the Secretary of State must send to the special adjudicator

Despite the limited scope of Rule 5(6) Mr. Macdonald submits that a duty to disclose all relevant documents can nevertheless be implied. As Steyn L.J. put it in the Court of Appeal, the omission to provide by rules for a duty to disclose material facts and relevant documents does not mean that Parliament sanctioned the exclusion of such a duty. On the contrary, Parliament assumes that procedural fairness will be observed, and legislates on that basis. In an appropriate case the courts have power to supplement the procedure laid down by Parliament: see Wiseman v. Borneman

[1971] AC 297

per Lord Reid at p. 308.

But this is not a case of mere omission. It is not a case of Parliament having left a gap which the courts can fill. Mr. Pannick argues that an implied obligation to disclose all relevant documents is wholly inconsistent with the express obligation to disclose specific documents as set out in Rule 5(6) of the 1993 rules. I can see no answer to that argument.

Mr. Macdonald pointed out that in ordinary appeals under part II of the 1971 Act the appellant would in general be as well aware of the background facts as the Secretary of State. In asylum appeals, on the other hand, the appellant would have no means of knowing whether a third party country was safe or not. Even if justice does not require disclosure of facts and documents in ordinary appeals, justice clearly requires disclosure in asylum appeals. Otherwise the decision of the special adjudicator would be little more than a rubber stamp. There would be no effective system of securing the rights of refugees.

This is a strong argument. But there are stronger arguments the other way. In the first place your Lordships are not now concerned with substantive rights to asylum. We are concerned with the procedural question whether the substantive hearing should take place here or in a third country. The longer the delay between the arrival of the appellant in the United Kingdom and his return to a safe third country, the less likely it is that that country will be willing to undertake the substantive hearing, in which case, if there is no other country to which the appellant can be sent, he would inevitably be returned again to the United Kingdom. So if the procedure under paragraph 180K of the Immigration Rules is to be effective at all (and I repeat that the validity of the rule is not an issue), it must be fast. This explains the very short time limits to which I have referred.

Secondly, it would not, I think, be right to infer, as has been suggested by Sedley J. and Steyn L.J. in the courts below, that justice is being sacrificed in the interests of speed. Although speed is important, and the time limits are correspondingly short, there is express provision in Rule 5(7) of the 1993 Rules whereby the special adjudicator can extend the time limit for giving notice of appeal, provided he considers it necessary in the interests of justice, even if the time limit has already expired. Similarly there is power to extend the time for determining an appeal, if it is necessary to enable the appeal to be determined fairly: see Rule 31.

Thirdly, there is special provision in Rule 5(6) for the Secretary of State to inform the United Kingdom Representative of the United Nation's High Commissioner for Refugees of all appeals by asylum-seekers, and the Representative is then entitled to become a party to the appeal under Rule 8(2). He exercised that right in both the instant appeals, and submitted representations in writing. Nobody supposes that the United Kingdom Representative can take an active part in every appeal, of which there are a great many. I have in mind the evidence of Miss Debbie Winterbourne, of the Refugee Legal Centre, in that connection. But if the United Kingdom Representative were to form the view that Spain, or any other country, was not a safe country to which refugees should be returned, I do not doubt he would make his views known. Added to which, the special adjudicators have themselves built up an expertise of their own. In a written case put before your Lordships, by Mr. Rabinder Singh on behalf of the special adjudicators, he lists the information which is available to special adjudicators under seven headings. In his oral submissions Mr. Singh put the case for wider disclosure by the Secretary of State. But if in a particular case the special adjudicator is in doubt, he can always exercise his powers to ask for particulars of the Secretary of State's case, or to require a witness to attend and produce documents. It may be that these powers are not used very frequently. But they are there in reserve, if need arises.

So I am not persuaded that justice requires that the Secretary of State should give discovery in asylum appeals, even if it were possible (which it is not) to reconcile such an obligation with the express provisions of the 1993 Rules. Indeed I find much force in Mr. Pannick's argument that if the courts were to supplement the rules by imposing some such obligation on the Secretary of State, there would be a risk of frustrating the evident legislative, purpose that "without foundation" appeals should be considered with all due speed. This was the view expressed by Neill L.J. and Peter Gibson L.J. in their carefully reasoned judgments in the Court of Appeal. It is sufficient to say that I agree with their reasoning.

I turn last to the subsidiary question. It was argued that the decision letters dated 29 November and 1 December 1993 do not in themselves constitute evidence in support of the Secretary of State's case, and that there was no other evidence before the special adjudicators on which they could uphold the Secretary of State's certificates. It will be remembered that in the third paragraph of the letters it is said on the Secretary of State's behalf that he has knowledge of the immigration policies and practices of Spain, and has experience of returning passengers to Spain on previous occasions. On the basis of that knowledge and experience the Secretary of State had no reason to believe that the Spanish authorities would not comply with their obligations under the Convention. This may not amount to much, but it is at least some evidence in support of the Secretary of State's certificate, and was admissible in that form by virtue of Rule 29 of the 1984 Rules, as incorporated in the 1993 Rules by Rule 22(3). Since the evidence was not challenged on behalf of the appellants, and since the only issue at the hearing of the appeals was whether the appellants had had an opportunity to apply for asylum in Spain, the special adjudicators were entitled on that evidence to. uphold the certificates.

For the above reasons, as well as those given by Neill and Peter Gibson L. JJ., I would dismiss these appeals.

Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Abdi (A. P) (Appellant) (Consolidated Appeals)

Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Gawe (A.P) (Appellant)

JUDGMENT

Die Jovis 15° Februarii 1996

Upon Report from the Appellate Committee to whom was referred the Cause Regina against the Secretary of State for the Home Department and another ex parte Abdi and Regina against the Secretary of State for the Home Department and another ex parte Gawe, That the Committee had heard Counsel as well on Monday the 13th as on Tuesday the 14th day of November last upon the Petitions and Appeals of Khalif Mohamed Abdi, of 24 Allen Barclay Close, High Road, Tottenham, London N15, and of Abdifatah Abduleh Gawe, of 4 Durban House, White City Estate, London W12, praying that the matter of. the Orders set forth in the Schedules thereto, namely Orders of Her Majesty's Court of Appeal of the 20th day of April 1994, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Orders might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the cases of the Secretary of State for the Home Department and the Special Adjudicators lodged in answer to the said Appeals; which said Appeals were by an Order of the House of the 10th day of October 1994 Consolidated; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal of the 20th day of April 1994 complained of in the said Appeals be, and the same are hereby, Affirmed and that the said Petitions and Appeals be, and the same are hereby, dismissed this House: And it is further Ordered , That the Costs of the Appellants in this House be taxed in accordance with the Legal Aid Act 1988 .

Cler: Parliamentor:

Cited in 34 later judgments

and 25 more of the most senior