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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  Imm AR 614,  EWCA Civ 747
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Dyson)
Friday, 11th May 2001
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE JONATHAN PARKER
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|EX PARTE MOHAMMED BOUHERAOUA|
|- v -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|EX PARTE FARID KERKEB|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant.
MR R SCANNELL (Instructed by the Greater Manchester Aid Unit, 406 Cheetham Hill, Manchester, M8 9LE)
appeared on behalf of Bouheraoua.
MISS S HARRISON (Instructed by Messrs Powell & Co, 77 Woolwich New Road, London SE18)
appeared on behalf of Kerkeb.
Crown Copyright ©
Friday, 11th May 2001
"The language of the condition is unqualified. This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by section 6 of the Act of 1993. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent. effective. There are going to be abberations. All that can be expected and therefore all that Parliament could have intended should be in place prior to the grant of a certificate was a system which can be expected not to contravene the Convention. What is required is that there should be `no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention.' The unpredictability of human behaviour or the remote possibility of changes in administrative law or procedures which there is no reason to anticipate would not be a real risk."
"In Reg. v Ministry of Defence, Ex parte Smith  QB 517, 554 Sir Thomas Bingham M.R. accepted as `an accurate distillation of the principles laid down' by the authorities a submission of Mr. Pannick which is in this terms:
`The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.'
When considering issues in relation to asylum seekers, the court is necessarily concerned with issues as to human rights and we would regard Mr. Pannick as accurately in that passage indicating the correct approach to be applied here.
It is also important to bear in mind that it is for the Secretary of State to evaluate the material. If the Secretary of State could properly come to the decision which he did on that material then this court cannot interfere. He is the person who has to form the opinion. However in order to form the opinion, it is necessary for him to take such steps as are reasonable in the circumstances to acquaint himself with the relevant facts."
"At present only four EU Member States, France, Germany, Italy and Sweden, do not recognise such victims of persecution by non-State agents as refugees."
"... when the alleged fear results from non-governmental forces, we follow the directives of the United Nations's High Commissioner for Refugees textbook that includes the procedures and standards for the definition of the refugee status (paragraph 65) ..."
"The Secretary of State has given careful consideration to all the material put forward by the Applicants since the certificates were issued."
"These threats do not come from governmental authorities and do not justify fear of persecution for reasons mentioned in the Convention of Geneva."
"No country can provide a system which is 100% effective. There are going to be abberations."
"Concerning Greece's policy on persecution by non-State agents, until recently, Greek asylum authorities (Ministry of Public Order) had never rejected an otherwise well-founded claim solely on the basis that persecution emanated from non-State agents.
In December 1998, the Ministry of Public Order first did so in the case of an Iraq Kurd. However, an application to quash the decision was lodged by the Iraq Kurd's lawyers at the Council of State. There is no decision yet."
"The conclusion I draw from that letter is that the UNHCR has hitherto accepted that the Greek authorities consider asylum claims based on non-state persecution in accordance with the mainstream interpretation shared by, inter alios, the UK, but that it has been made aware of one case in which the Greek asylum authorities appear to have rejected an asylum claim on the basis that persecution emanated from non-state agents."
"The Applicant has brought to the Secretary of State's attention the case of one individual asylum applicant in Greece in which it would appear that, although the refusal of asylum was based on a number of grounds, the Greek authorities may have rejected the claim on the basis that non-state persecution is not recognised under the terms of the Geneva Convention. That would appear to be an aberrant decision. Clearly, no country's asylum system is 100% foolproof. It is for this reason that most, if not all, signatories to the Geneva Convention provide for a system whereby an asylum seeker whose asylum claim has been rejected has recourse to some form of appeal. This is the case not only in the United Kingdom but also in Greece, and it would appear that the Iraqi Kurd, on whose case the present Applicant relies, has availed himself of the Greek appeal system and that he has an outstanding application to quash the decision. Moreover, the Secretary of State notes that the decision on which the Applicant relies was not one of the Greek higher courts, but was the outcome of a first instance lower level appeal. The Secretary of State is conscious that there are instances in the UK where Special Adjudicators fall into errors of law. This does not mean that UK law and practice does not accord with the Geneva Convention. On the balance of all the evidence before him, therefore, the Secretary of State is satisfied that this decision does not properly represent the law and practice in Greece, which is such that persecution by non-state agents for a Convention reason is considered to bring asylum claimants within the terms of the Geneva Convention."
"Given the concerns raised by the Applicant, the Secretary of State has asked the Greek authorities if they have any comments to make in relation to Mr Ali's case. Unfortunately it is the Secretary of State's experience that it can take some considerable time for foreign governments to formulate a response to enquiries of this nature, particularly where they relate to an ongoing case, and he has not yet received a response to his enquiry. He has, therefore, carefully reviewed the position in order to decide whether or not he feels it is appropriate to maintain his certificate in the absence of such a response. Having considered the matter with great care, the Secretary of State is entirely satisfied that his certificate should stand in the light of the totality of the evidence he does have. He is satisfied that Greek law and practice accord with the Convention, that, at most, Mr Ali's case represents a misinterpretation of that law and practice, and that it is an isolated instance. Seen in the context of the compelling evidence that the Greek authorities adopt the same approach to the question of non-state persecution as the UK, the Secretary of State remains satisfied that the decision in the case of the Iraqi Kurd is not a reliable reflection of the Greek authorities' approach towards non-state persecution; that it is amenable to review by the Greek courts, which will properly apply Greek law on this issue; that the Greek authorities would not send the Applicant elsewhere otherwise than in accordance with the Convention; and that the certificate in this case should be maintained.
In view of Mr Taylor's statement that inquiries made of Greece for a full explanation of the Ali case had not yet borne fruit, it should perhaps be noted that the proceedings before Dyson J had been adjourned on two occasions in the hope that such information would be forthcoming in the event that a court was invited to rely on those matters to which Mr Taylor refers. Dyson J expressed his approach to the general question before him in paragraphs 18 and 19 of his judgment:
"18.The question for the Secretary of State is whether the facts indicate that there is a real risk that the asylum seekers would be sent to another country otherwise than in accordance with the Convention. Translated to the context of this case, this means that the question for the Secretary of State is whether, on the facts, there is a real risk that, in considering the claims by these two Algerian Applicants, the Greece asylum authorities would apply the accountability approach.
19.The need for `anxious scrutiny' in asylum cases has been repeated in many decisions of this Court and the Court of Appeal. It is not a mantra to which only lip-service should be paid. It recognises that these cases engage fundamental human rights."
"21.I have come to the clear conclusion that it was not reasonably open to the Secretary of State to decide on the totality of the material that was before him that there was no real risk that the Greek asylum authorities would ... apply the accountability approach when considering the claims by these two Algerian nationals. It is true that according to the UNHCR and CIREA material to which I have referred, the Greek authorities assert that they apply the protection approach. But there is no evidence of any case in which asylum has been granted to persons claiming non-state persecution. As the UNHCR representative wrote in a letter dated 26th August 1999:
`However, it is not possible to say whether and in how many cases asylum has been granted to persons claiming non-State persecution, since there is no motivation of decisions granting asylum.'
22.I think that by `motivation' the writer meant `reasoning'. The only evidence of a case in which a claim based on non-state persecution was considered by the Greek authorities is that of Ali Ali. If this had been a decision by a single official in the Ministry of Public Order, it might have been reasonable to dismiss it as aberrant, particularly if there was evidence from someone in a position of authority in the Ministry that this was the view that they took of it too. But in the present case, the initial decision was upheld by the 4 man Ministry committee, an apparently high powered committee chaired by `the legal adviser' to the Minister. In these circumstances, it is far more difficult to treat the decision as an aberration. The Secretary of State has responsibly sought comments from the Greek authorities about the Ali Ali case. He was right to do so, since the fact that the initial decision was upheld by the Committee casts doubt on the accuracy of the general assertions contained in the UNHCR and CIREA material. One would have thought that if this was, in truth, an aberrant decision, inconsistent with a clear policy of adopting the protection approach to non-state persecution cases, the authorities would have so informed the Secretary of State.
23.I understand the present applications were adjourned twice in order to enable the Secretary of State to obtain confirmation that the decision was aberrant. No such confirmation has been received. Given the composition of the Committee that upheld the initial decision in the Ali Ali case, this is perhaps not surprising. In my view, these facts should have led the Secretary of State to conclude, at the very least, that there is real doubt as to whether, as a general rule the Greek authorities do apply the protection approach. Actions speak louder than words. Absent the evidence of the Ali Ali case, it would have been difficult to criticise the Secretary of State's decision. But this case is the only hard piece of evidence that was available to the Secretary of State. If the decision had been explained by the Greek authorities as an aberration, the Secretary of State could reasonably have accepted that explanation and so treated it. If the Council of State had quashed the decision on the grounds that it was inconsistent with the true interpretation of the Convention, the Secretary of State could properly have decided as he did. But there has been no determination by the Council of State.
24.In my judgment, on the material before him, the Secretary of State could not reasonably have treated this decision as aberrant. In reaching this conclusion I remind myself that I am reviewing the decision of the Secretary of State on the so-called `enhanced' Wednesbury principles. Like the Court of Appeal in Turgut, I do not consider I should pay especial deference to the Secretary of State's conclusion on the facts. The human rights involved here are both absolute and fundamental: the right to like and the right not to be exposed to a real risk of ill-treatment within the meaning of Article 3 of the European Convention on Human Rights. These are not qualified rights requiring a balance to be struck with some competing social need. Further the Court here is as well placed as the Secretary of State to evaluate the risk once the relevant material is placed before it. The question is whether there is a real risk that the accountability approach would be applied. The real risk test is not particularly stringent, and in my judgment the Secretary of State ought to have been persuaded that it was made out on the facts of these two cases."
(1) Mr Burnett QC, on behalf of the Secretary of State, argued that Ali Ali predated the various assurances that had been received from Greece and predated the further steps taken in that country, including the availability of an appeal to the Supreme Court. It was inconceivable, in his submission, that the cases of these present applicants, which would be heard under the current regime, would be decided on the accountability theory. But the difficulty about that, at first sight cogent, argument is that which was pointed out by the judge in the passages I have already quoted. If Ali Ali really was an aberrant decision and was seen as such within Greece, it would be easy enough for the Greek Government to say so, and to say further that in the Supreme Court proceedings it would not be seeking to hold the decision that the Ministry's Committee had given. No such indication has been forthcoming, despite the best efforts of the Secretary of State to receive it, and despite there having been two adjournments for that very purpose. That failing may be explicable, as the Secretary of State's deponents sought to explain it, on the grounds of diffidence on the part of the Greek authorities in commenting on currently proceeding cases, or simply by inertia or slowness. The point, however, is that the information that the judge thought to be necessary for a rational decision simply was not available, for reasons either good or bad.
(2) The judge's comment that the court was in as good a position as the Secretary of State to assess the information available was taken from the judgment of this court in the case of Turgut  Imm AR page 306. That was a case on Article 3 of the European Convention on Human Rights, now the foundation of Rights in English domestic law by reason of the Human Rights Act 1998. The Human Rights Act was not in force at the time of that judgment. The court emphasised that therefore its role may be one of review only. But at the same time the court may well have been influenced by the intensity of the rights that are created by Article 3 and the importance, even before the coming into actual operation of the 1998 Act, that such rights held in English domestic law. For my part, I would hesitate before saying that in all cases subject to the enhanced Wednesbury test, not just EHCR cases, the court can or should go further than an approach of anxious scrutiny of the actual decision of the Secretary of State, and come as near as the court may have done to making its own decision on the facts. If I thought that this element in the judge's decision had been crucial, or even of significant, importance to that decision, I would have wanted to hear further argument on this point. As it is, however, the judge plainly reached his conclusion on orthodox judicial review grounds, and would have done so without any reference to Turgut.
(3) The Secretary of State relied not only on the reasoning in Canbolat but also on the outcome of that case. For the reasons given by the judge, that approach was not justified. But it is worthwhile noting why that was so. In Canbolat the complaint about the French system was not that French law was inconsistent with the Geneva Convention, but that those administrating that law in France were not sufficiently respectful of its provisions. As the Court of Appeal said, and as it repeated in Adan in a passage cited by Dyson J at paragraph 13 of his judgment, that is a question of fact and practice, where the court will give weight to the Secretary of State's conclusions as a result of his inquiries and where, as was said in Canbolat, one aberrant case will not in itself demand a change of opinion. But the complaint in our present case is not that Ali demonstrates administrative failings at a low level, but that it seems to suggest a view of the law entertained at a level of influence and importance that is inconsistent with the Geneva Convention. Accordingly, Ali Ali, if it is aberrant at all, is aberrant in a quite different way from the instance hypothesised in Canbolat, and requires a quite different form of explanation before it can be properly held not to shed relevant light on practice in the country concerned. The adherence in the Secretary of State's evidence to the approach, indeed to the very wording, used by the Court of Appeal in Canbolat, suggested that that distinction may not have been appreciated. This point makes no difference to the outcome of this appeal, but it may need to be considered in future third country cases.
"If the trial takes place before the High Court and either party seeks to appeal, the principles governing the admission by the Court of Appeal of new evidence are different. At that stage it will not unusually be appropriate for an attempt to be made before this court to substitute a new decision for the old and to litigate the legality of that new decision before this court. That is because in principle this court is a court of appeal not a court of trial. The normal rules governing the reception of evidence on appeals will normally apply. However, this court will in exercising its discretion bear in mind the passage in Launder to which I have already referred."
"This is the conclusion reached upon all the material placed before the court. The matter could have been considered and would normally have to be considered at the date on which the Secretary of State formed his opinion, namely 28 January 1998. However, the applicant's case at that date was no stronger than it was at the time of the hearing before this court and in those circumstances it was sensible to look at the whole material as was done in Canbolat rather than to confine attention to the precise material which was available to the Secretary of State."