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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 519,  Imm AR 430,  ACD 87
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Scott Baker)
Friday 6 April 2001
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE TUCKEY
LORD JUSTICE MANCE
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW|
|on the application of|
|- v -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)
MS L GIOVANETTI (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
Friday 6 April 2001
"The full court should have the opportunity of deciding whether it is properly arguable that anything in the decision of the House of Lords in ex [parte] Aitseguer relating to EU membership survives the introduction of the 1999 Act, despite what Lord Steyn said in express terms in Adan/Aitseguer  2 WLR 143 at 151D-E."
The 1999 Act
"11 Removal of asylum claimants under standing arrangements with member States
(1) In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as -
(a)a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
(b)a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.
(2) Nothing in section 15 prevents a person who has made a claim for asylum ('the claimant') from being removed from the United Kingdom to a member State if -
(a)the Secretary of State has certified that -
(i)the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and
(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;
(b)the certificate has not been set aside on an appeal under section 65.
(3) Unless a certificate has been issued under section 72(2)(a) in relation to a person, he is not to be removed from the United Kingdom -
(a)if he has an appeal under section 65 against the decision to remove him in accordance with this section pending; or
(b)before the time for giving notice of such an appeal has expired.
(4) 'Standing arrangements' means arrangements in force as between member States for determining which state is responsible for asylum."
"(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.
(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998."
"71 Removal of asylum claimants to safe third countries
(1) This section applies if a certificate has been issued under section 11 or 12.
(2) The person in respect of whom the certificate was issued may appeal against it to an adjudicator on the ground that any of the conditions applicable to that certificate was not satisfied when it was issued, or has since ceased to be satisfied."
"(1) Unless a certificate issued under section 11 or 12 has been set aside on an appeal under section 65 or 71 or otherwise ceases to have effect, the person in respect of whom the certificate was issued is not entitled to appeal under this Act as respects any matter arising before his removal from the United Kingdom.
(2) A person who has been, or is to be, sent to a member State or to a country designated under section 12(1)(b) is not, while he is in the United Kingdom, entitled to appeal -
(a)under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded; or
(b)under section 71."
The decision letter
"Immigration and Asylum Act 1999 - Notice of decision to certify asylum application on third country grounds
1. You have applied for asylum in the United Kingdom on the grounds that you have a well founded fear of persecution in Sudan for reasons or race, religion, nationality, membership of a particular social group or political opinion.
2. However, Sudan is not the only country to which you can be removed. Under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (the Dublin Convention) the authorities in France have accepted that France is the member State responsible for examining your application for asylum. By virtue of section 11(1) of the Immigration and Asylum Act 1999 France is regarded as -
(a)a place where your life and liberty will not be threatened by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and
(b)a place from which you will not be sent to another country otherwise than in accordance with the Refugee Convention.
3. You are, under paragraph 8.1(c) of Schedule 2 of the Immigration Act 1971, returnable to France, which is a signatory to the 1951 United Nations Convention relating to the Status of Refugees.
4. Paragraph 345 of the Statement of Changes in Immigration Rules (HC 395) provides that an application for asylum will normally be refused without substantive consideration if there is a safe third country to which the applicant be sent. The Secretary of State can find no grounds for departing from this practice in your case.
5. Third country certificate
On the basis of his knowledge of the immigration policies and practices of France and on previous experiences in returning passengers to France, the Secretary of State is of the opinion that, in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention. He hereby certifies, therefore, that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act 1999 are satisfied, namely that:
-the authorities in France have accepted that, under standing arrangements, France is the responsible State in relation to your claim for asylum; and
-you are not a national or citizen of France.
6. Right of appeal
You are entitled to appeal to an adjudicator under section 71(2) of the Immigration and Asylum Act 1999 against the decision to certify your application on the ground that any of the conditions mentioned above was not satisfied when the certificate was issued or has since ceased to be satisfied. By virtue of section 72(1) of the Immigration and Asylum Act 1999 you are not, unless the Third Country certificate is set aside on appeal or otherwise ceases to have effect, entitled to appeal under the Immigration and Asylum Act 1999 as respects any matter arising before your removal from the United Kingdom.
7. Because France is a member State of the European Communities you are not, by virtue of section 72(2)(b) of the Immigration and Asylum Act 1999, entitled to appeal so long as you are in the United Kingdom."
"The Act of 1999
Section 169(3) of and Schedule 16 to the Immigration and Asylum Act 1999 repealed sections 2 and 3 of the 1996 Act. By section 11 of the 1999 Act, a member state of the European Union with which there are standing arrangements, such as the Dublin Convention, for determining which state is responsible for considering applications for asylum, is to be regarded as a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention. The asylum seeker has a right of appeal on the ground that removal to the member state will contravene section 6 of the Human Rights Act 1998: sections 11(2); 65. The Secretary of State can carry out the removal before the right of appeal is exercised if he certifies that the allegation that the removal would breach the asylum seeker's human rights is manifestly unfounded: sections 11(3); 72(2)(a). These provisions of the 1999 Act came into force on 2 October 2000. The issue raised in the present case may still arise in cases where the proposed removal is not to a member state under standing arrangements: section 12 of the 1999 Act."
". . . in addition to a right of appeal out-of-country under section 71(2), the Claimant has an in-country right of appeal under section 65 on the grounds that the decision to remove him to France is a breach of his human rights. That appeal can be exercised whilst the Claimant remains in the UK, unless the [Home Secretary] certifies under section 72(2)(a) that the appeal is manifestly unfounded."
"No notice of decision is required to be given. . . by reason only of the fact that the decision could be appealed under section 65 of the 1999 Act . . . if the person in question were to make an allegation that an authority had acted in breach of his human rights in taking it; but such notice must be given upon such allegation being made."
"England used to rule our country & they would be able to understand us better. My second language is English & therefore I would be able to live better here than in France."