The Queen v. Secretary of State of The Home Department, Ex parte James Waweru Mbanja
|Publisher||United Kingdom: Court of Appeal (England and Wales)|
|Author||Court of Appeal (Civil Division)|
|Publication Date||1 July 1999|
|Citation / Document Symbol||QBCOF 1998/1263/4|
|Cite as||The Queen v. Secretary of State of The Home Department, Ex parte James Waweru Mbanja, QBCOF 1998/1263/4, United Kingdom: Court of Appeal (England and Wales), 1 July 1999, available at: http://www.refworld.org/docid/3affd6234.html [accessed 20 September 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE DYSON)
1 July 1999
LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE PILL
LORD LLOYD OF BERWICK
THE QUEEN - v - THE SECRETARY OF STATE OF THE HOME DEPARTMENT EX PARTE JAMES WAWERU MBANJA
MR MANJIT GILL & ASOKA DIAS (Instructed by Messrs Powell & Co., London, SE18 6ED) appeared on behalf of the Appellant
MR MARK SHAW (Instructed by Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
LORD JUSTICE PILL:
This is an appeal against a decision of Mr Justice Dyson given on 7 September 1998 whereby he refused an application by Mr James Waweru Mbanja ("the appellant") to quash a decision of the Secretary of State for the Home Department ("the respondent") dated 3 April 1998 to issue a Certificate under section 2 of the Asylum and Immigration Act 1996 ("the 1996 Act") authorising the removal of the appellant from the United Kingdom to Belgium. The appellant also sought unsuccessfully to quash a decision of the Immigration Officer dated 24 April 1998 to refuse him leave to enter the United Kingdom.
The appellant is a Kenyan national who claims asylum in the United Kingdom under Article 1 of the 1951 Convention Relating to the Status of Refugees (as amended) ("the 1951 Convention"). He claims to have a well-founded fear of persecution in Kenya on account of his political opinions. He arrived in London by Eurostar from Brussels on 2 November 1997 having flown there from Kenya. It is accepted on his behalf that he had an opportunity to claim asylum in Belgium but did not do so. The Belgian authorities have accepted responsibility for the applicant under Article 6 of the Dublin Convention of 1990. By the letters complained of, the respondent issued a Certificate under section 2 of the 1996 Act and notified the applicant that his claim was to be refused without substantive consideration because he would be returned to Belgium.
The Dublin Convention of 1990, made between the States of the European Union, provides means for determining the State responsible for examining applications for asylum under the 1951 Convention lodged in one of the Member States. Article 6 provides that "when it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-Member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum". Section 2 of the 1996 Act provides insofar as is material:
"(1) Nothing in section 6 of the Act of 1993 (Protection of Claimants from Deportation etc) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if - (a) the Secretary of State has certified, in his opinion, the conditions mentioned in sub-section (2) below are fulfilled;
(2) The conditions are
(a) that the person is not a national or citizen of the country or territory to which he is to be sent;
(b) that his life and liberty would not be threatened in that country of territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion;
(c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention".
Article 33 of the 1951 Convention, to which the United Kingdom and Belgium are parties, provides:
"Prohibition of Expulsion or Return (Refoulement).
1. 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."
The issue is whether the respondent was entitled to issue a certificate under section 2(2) of the 1996 Act. Upon an application of section 2(2)(c) of the Act, that depends on whether the Belgian Government would not send the appellant to Kenya or another country otherwise than in accordance with the 1951 Convention.
In the words customarily used, was Belgium a "safe third country"? The same question arose, with respect to France, in R v Secretary of State for the Home Department & Anor ex p Canbolat  1 WLR 1569. Giving the judgment of this Court, Lord Woolf MR stated at p 1577E:
"Section 2 [of the 1996 Act] requires the Secretary of State to certify the conditions mentioned in subsection (2) are fulfilled.' The relevant condition which he had to certify was fulfilled which was in issue was that the government of [France] would not send [her] to another country or territory otherwise than in accordance with the Convention.' 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 aberrations. 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."
The Court went on to underline that the "opinion" mentioned in section 2 of the 1996 Act was that of the Secretary of State and expressed the test in this way, at p 1579D to H:
"The identification of the right test is however necessary when considering whether the decision of the Secretary of State was one to which he was entitled to come on the material which was before him.
In Reg v Ministry of Defence, Ex parte Smith  QB 517, 554 Sir Thomas Bingham MR accepted as an accurate distillation of the principles laid down' by the authorities a submission of Mr Pannick which is in these 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."
For the applicant, Mr Gill submits that the Belgian procedure for dealing with the admissibility of claims for political asylum is so defective as to give rise to a real risk that the appellant's claim for asylum will not be considered in accordance with the 1951 Convention and that the Secretary of State cannot reasonably be satisfied that the condition in section 2(2)(c) of the 1996 Act is satisfied. Claims for asylum are first made to the Directorate for Alien Affairs ("DAA") an arm of the Ministry of Internal Affairs. The flaws in the Belgian admissibility procedure are evidenced, it is submitted, by the fact that about 90% of all applications for asylum are rejected by the DAA at the admissibility stage, that is they are held not even to merit full consideration. The procedure provides for an appeal to the Commissioner General ("CG"). He and his deputies are required to "make their decisions and issue their opinions with absolute independence" and their posts are "incompatible with the exercise of any political mandate" (Article 57 of the Belgian law of 15 December 1980). Appeals to the CG are made in about 90% of the cases rejected by the DAA at the admissibility stage and appeals are allowed in about 30% of those cases.
Criticisms are also made of the procedures followed at the admissibility stage. Interviews are brief and the interviewers are often insufficiently trained, it is submitted. Access to a lawyer is not permitted and the decision is not always communicated to the applicant in a language which he can understand. Technical grounds may be used to defeat claims for asylum. Proceedings before the CG are also unfair in particular because the applicant, when making submissions to the CG, did not have access to his file or to the record of the interview by the DAA. It is not disputed that a proper procedure may include a filtering out of applications for asylum which are manifestly unfounded but the 90% figure already mentioned is submitted to be startling.
Manifestly unfounded applications for asylum may well be a clog upon the proper operation of asylum procedures and the manner in which they should be dealt with has been the subject of national and international concern. In their Conclusion 30 of 1983, the Executive Committee of the United Nations High Commissioner for Refugees ("UNHCR"):
"(c) Noted that applications for refugee status by persons who clearly have no valid claim to be considered refugees under the relevant criteria constitute a serious problem in a number of States parties to the 1951 Convention and the 1967 Protocol. Such applications are burdensome to the affected countries and detrimental to the interests of those applicants who have good grounds for requesting recognition as refugees.
(d) Considered that national procedures for the determination of refugee status may usefully include special provision for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination at every level of the procedure. Such applications have been termed either clearly abusive' or manifestly unfounded' and are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United National Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum.
(e) Recognised the substantive character of a decision that an application for refugee status is manifestly unfounded or abusive, the grave consequences of an erroneous determination for the applicant and the resulting need for such a decision to be accompanied by appropriate procedural guarantees and therefore recommended that:
(i) as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;
(ii) the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status;
(iii) an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments should give favourable consideration to their establishment. This review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.
(f) Recognised that while measures to deal with manifestly unfounded or abusive applications may not resolve the wider problem of large numbers of applications for refugee status, both problems can be mitigated by overall arrangements for speeding up refugee status determination procedures, for example by:
(i) allocating sufficient personnel and resources to refugee status determination bodies so as to enable them to accomplish their task expeditiously, and
(ii) the introduction of measures that would reduce the time required for the completion of the appeals process."
On 1 December 1992, the Ministers of the Member States of the European Communities adopted a resolution on manifestly unfounded applications for asylum. It was stated to be "inspired by Conclusion No 30 of the Executive Committee of the UNHCR". Paragraph 1(a) of the Resolution provides:
"An application for asylum shall be regarded an manifestly unfounded because it clearly raises no substantive issue under the Geneva Convention and the New York Protocol for one of the following reasons: there is clearly no substance to the applicant's claim to fear persecution in his own country (paragraphs 6 to 8): or the claim is based on deliberate deception or is an abuse of asylum procedures (paragraphs 9 and 10)."
Those paragraphs elaborate, in considerable detail, upon the type of conduct which may come under those headings. Paragraphs 2, 3 and 4 of the Resolution provide:
"2. Member States may include within an accelerated procedure (where it exists or is introduced), which need not include full examination at every level of the procedure, those applications which fall within the terms of paragraph 1, although an application need not be included within such procedures if there are national policies providing for its acceptance on other grounds. Member States may also operate admissibility procedures under which applications may be rejected very quickly on objective grounds.
3. Member States will aim to reach initial decisions on applications which fall within the terms of paragraph 1 as soon as possible and at the latest within one month and to complete any appeal or review procedures as soon as possible. Appeal or review procedures may be more simplified than those generally available in the case of other rejected asylum applications.
4. A decision to refuse an asylum application which falls within the terms of paragraph 1 will be taken by a competent authority at the appropriate level fully qualified in asylum or refugee matters. Amongst other procedural guarantees the applicant should be given the opportunity for a personal interview with a qualified official empowered under national law before any final decision is taken."
Reference was also made to a draft resolution on Minimum Guarantees for Asylum Procedures which was before the Council of the European Union on 14 March 1995. Once definitively approved, it was to be sent to the European Parliament but we are not told that it has been adopted or approved. It refers to the Resolution of 1 December 1992 and includes a section setting out the rights of asylum seekers.
Mr Gill also refers to the Report of 23 June 1998 to the Belgian Senate on behalf of the Select Committee for Home Affairs and Administration reviewing the Belgian Act of 1980 to which further reference will be made. The Committee does call, for example, for "training and education of all officials who deal with this subject matter, and in the first instance for those who conduct interviews with asylum applicants". Under the heading "Admissibility procedure and first interview by the Aliens Office" the report records the Minister's view that "the office is not required to be responsible for assessing the applications in depth. But it must examine whether sufficient elements exist to warrant a further investigation". The Committee's conclusion was that it can "empathise with those concerns and it appreciates the efforts made by the Minister to meet them".
I can say at this stage that I find nothing in the Report which requires the respondent to find that the alleged "real risk" is present. Indeed, the existence of the Select Committee and the review procedure may reassure the respondent that appropriate safeguards will be provided.
Article 52 of the Belgian law of 15 December 1980 provides in paragraph 1 that:
"the Minister of Justice or his delegate may decide that a foreign national who attempts to enter [Belgium] and who declares himself a refugee and applies at the frontier to be recognised as such, shall not be permitted to enter to the country and shall therefore be sent back to his country of origin by the authorities responsible for border controls."
"If the application is clearly founded on grounds which would render the grant of asylum inappropriate, and in particular:
(a) because it is fraudulent, (b) or because it fails to meet either the criteria set out in article 1 A (2) of the [1951 Convention], nor other criteria which justify the grant of asylum."
"If the foreign national has been sent back or expelled from [Belgium] less than ten years previously, unless the order has been suspended or revoked."
"If the application is clearly without grounds, because the foreign national provides no evidence that he has serious reason to fear persecution within the meaning of the International Convention above mentioned."
Paragraphs 2 and 7 were subject to adverse comment in a speech by the Regional Delegate of the UNHCR for Benelux and the European Institutions before the Committee of the Interior of the Chamber of Representatives of Belgium on 28 October 1997. The Delegate stated:
"Paragraph 7 of article 52 of the law adds a supplementary basis which is not found in conclusion no. 30. This eliminates from the process the foreigner who cannot provide proof that there exist, where he is concerned, serious indications' of a well-founded fear of persecution in the sense of the Geneva Convention. The absence of this evidence qualifies the application as manifestly unfounded.
The High Commission is of the opinion that the element of fear is a fundamental notion of refugee status. This is what determines its granting. And yet, if this notion is examined on entry by the admissibility administrators, one may deduce that they have already begun the basic examination. In addition, the interpretation of the notion of manifestly unfounded' at the end of article 52 in paragraphs 2 and 7 must be done more strictly. Confronted with this problem of interpretation, the High Commission has interceded on many occasions in recent years at the level of admissibility in the context of article 57/23b. (Power of the High Commission to consult the Belgian documents and to give an opinion to the relevant Minister). In these cases, the High Commission has indicated that according to its assessment, the application was not manifestly unfounded and has suggested that a more detailed study was done as to the basis of the procedure.
I must hasten to stress immediately that whatever the good intentions of the HCR, this has been a failure because it cannot intervene in all the cases where it believes that the application is not manifestly unfounded. The reason is that the number of cases is very large, coupled with the lack of resources. On the other side, it may be feared that the complexity of the cases and the lack of experts may pose problems.
In the aforementioned complexity, the administrators at the admissibility stage have moved, at the level of the latter, towards a tendency which worries the HCR, that of evaluating at this precise point the links between the facts and the criteria contained in the Geneva Convention. In the opinion of the HCR, the procedure at the level of admissibility should only determine whether these links exist and abandon the evaluation at the state of the basic examination. There are not the same guarantees at the level of admissibility: interviews are in general shorter and the applicant has no access to his file. As a result, there are non-suited applicants who have not had a proper study of their application as basic level and are then excluded from the necessary protection and risk being returned to a country where they rightly fear persecution.
As an erroneous decision at the level of admissibility leads to serious consequences, the HCR would like to suggest that the terms of paragraph 7 of Article 52 are reconsidered and that the interpretation of the term manifestly unfounded' should be done more strictly."
The Delegate stated in his conclusions that "it is the sincere wish of the High Commission that you will make sure that the suggestions I have made in the name of the High Commission concerning the interpretation of the notion of manifestly unfounded ¼ can lead to solutions being found ¼ ."
Mr Gill refers to the high status of the UNHCR as the custodian of international standards. Article 35 of the 1951 Convention states:
"The contracting States undertake to cooperate with the Office the UNHCR, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention."
Having regard to the views expressed on behalf of the UNHCR, the respondent must conclude that the Belgian procedures for admissibility are defective and that the real risk identified in Lord Woolf's test exists, it is submitted. The respondent was at least under a duty to make further enquiries of UNHCR or of the Belgian authorities before issuing a certificate.
In R v Secretary of State for the Home Department ex p Gashi (transcript 29 March 1999) this Court quashed a certificate when the question was raised whether Germany was a safe third country. Statistics before the Court as to recognition rates required, in the view of the Court, an explanation. Buxton LJ stated (at p 24):
"The duty of anxious consideration to enable the Secretary of State to be satisfied that there is no real risk of Mr Gashi being sent by Germany to another country otherwise than in accordance with the Convention therefore required, on the facts of this case, that the Secretary of State should consider, and almost certainly seek further explanation of, the figures as to actual recognition rates in Germany. Since he has taken no steps in that direction his decision cannot stand."
The reference to the duty of anxious consideration clearly reflects Lord Bridge's statement in R v Home Secretary ex p Bugdaycay  AC 514, 531, an asylum case, that "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.".
Before issuing his certificate in the present case, the Secretary of State made enquiries of the Belgian authorities and a considerable amount of information was supplied. In a letter dated 8 December 1997, Mr Schewebach, Director General, General Secretariat of the Department of Foreign Affairs, Ministry of Internal Affairs stated:
"Manifestly unfounded asylum applications' in accordance with article 52, § 1, 7, § 2, 2, and § 3, 2, of the immigration law of 15 December 1980 on access to the territory, the residence, settlement and removal of foreigners'; this concept is being applied in accordance with the jurisprudence of the Council of State which has in one case stated that a "manifest" thing is that whose existence or nature is obvious to a reasonable mind with a force of conviction such that more thorough extensive investigations do not appear necessary'. (CE, no. 40.082, 12/8/1992).
For example there are major contradictions in the statement itself or between two statements by a couple or two brothers ¼, which undermines the credibility of the allegations;
there are improbabilities:
It is hardly credible / likely that the authorities would have sent an arrest warrant to the interested part by post; it is astonishing that the interested party claims to be followed and sought when he could still obtain a passport and leave the country legally (cf. Exit stamps);
The interested party cannot state (even approximately) the dates of his imprisonment (or of his journey), etc); the interested party claims to be an active militant but is incapable of giving the name of the leader of his party so that one may doubt what he says; the interested party remains very vague as to his concrete activities and he does not appear to be a notorious militant whom the authorities are hounding;
the interested party mentions the general context (climate, situation) in the country and does not appear to be either personally pursued or threatened (cf. Algeria).
* not related to the criteria of the Geneva Convention' in accordance with article 52, § 1, 2, b, §2, 2, and § 3, 2, of the immigration law of 15 December 1980;
For example the reasons are economic in nature; the interested party cannot provide for his needs in his own country and hopes to find work in Belgium;
The reasons come under common law:
The interested party claims to be wanted because he has killed (or robbed), possibly a case of terrorism;
the reasons are not of a political, ethnic or religious nature.
Desertion or draft avoidance for fear of getting killed - professional or family problems - in general, racketeering or Mafia problems (cf Eastern countries).
Fraudulent in accordance with article 52, §1, 2, a, §2, 2 and §3, 2 of the immigration law of 15th December 1980; this motive is since the law of 6/5/1993 introducing the motive of obviously not well founded asylum applications' invoked for the use of:
-clearly false declarations
-false documents, which are not revealed at the beginning of the interview."
Also supplied was a detailed letter from the CG dated 2 December 1997 setting out the procedures he follows. The CG also refers to the supervisory function of the Council of State, Belgium's highest administrative court. The respondent is entitled, when forming his opinion, to consider the Belgian procedures as a whole.
It is acknowledged that the Belgian procedure is different from that in the United Kingdom but it is submitted on behalf of the respondent, rightly in my view, that the 1951 Convention does not lay down a specific procedure to be followed when applications for asylum are made. Procedures in Convention States for dealing with applications for asylum may be different from each other but still comply with the Convention.
Reference is made by the respondent to assurances given by the Belgian authorities including assurances that technical grounds do not predominate over the question of substance and that claims are examined in the round'. As to the conduct of interviews, Mr Schewebach stated:
"The agents of the [DAA] with long experience, who are familiar with the Geneva Convention, the HCR guidelines, and who have developed certain interview skills, give training to new agents as far as possible. Every agent follows the situation of the asylum country that he treats closely on the basis of information provided by the documentation service of the [DAA]. Moreover, only persons of Level 1' with a university degree decide on the admissibility of the asylum claims."
During 1996 about 50 asylum seekers were returned to Belgium on safe third party grounds and the Secretary of State is not aware of any allegation that they were treated otherwise than in accordance with the Convention. At about 7%, Belgium's rate of acceptance is comparable with that of other European Union states, including the United Kingdom. Belgium has, it is stated on behalf of the respondent, "a long track record of providing protection to refugee seekers". (The evidence in Gashi was that the recognition rate in Germany with regard to asylum seekers from the Federal Republic of Yugoslavia had fallen to 2.5% in 1997 and was 2.7% in 1998).
The judge has dealt in detail with the specific complaints made about the Belgian procedure and I agree with his comments and with his conclusion. The respondent was provided by the Belgian authorities with detailed information as to procedures followed by the DAA. The judge also held the right of appeal to the CG to be "valuable and effective". A procedure before the CG which does not permit an applicant, on appeal, to see the statement he made at the initial interview is not of itself unreasonable in the circumstances, given a fair approach by the CG to any inconsistencies which may emerge. It does not in itself create the real risk alleged to be present.
A point Mr Gill has stressed before this Court is whether the respondent has given sufficient attention to the Belgian operation of an admissibility procedure for dealing with claims which results in 90% of applications being rejected initially as manifestly unfounded. He also emphasises the concern expressed on behalf of the UNHCR.
The essence of the concern of the UNHCR Delegate, as expressed in the speech on 28 October 1997, appears to me to be that points of substance are being considered at the level of admissibility. In the letter of 8 December 1997 already mentioned, Mr Schewebach, dealt expressly with the Delegate's concern. He stated that "the concept of obviously not well founded asylum applications', the criticism expressed by the HCR cannot be joined; it is in most cases inevitable that the Aliens Office incidentally examines if the application is founded at first sight." (emphasis in original). It is submitted that the statement is neither clear nor satisfactory and the respondent should at least have made further enquiries about the Belgian procedure.
The statement is not entirely clear; the difficulty may be in translating from a Flemish original. The point made in the statement is that applications are examined at the admissibility stage even if admissible at first sight. Read in that way, it is consistent with the extract already set out from the letter. The admissibility procedure, as applied in Belgium, by the DAA and, on appeal, by the CG does involve what in other countries may be considered to be an examination of the merits. There is a measure of disagreement between the UNHCR and the Belgian authorities as to whether that is appropriate. The disagreement is unfortunate and it is of course to be hoped that it can be resolved to the satisfaction of UNHCR.
That state of affairs does not however, in my judgment, require the respondent to decline to certify or require him to pursue the point further with either party. Upon the detailed information and assurances given by the Belgian authorities, the statistics as to applications granted and the answers given by the authorities of a country with the track record of that of Belgium, the respondent was entitled to form the opinion that there was no real risk that the appellant would be sent to another country otherwise than in accordance with the 1951 Convention. He has considered the information in the light of representations made on behalf of the appellant and his conclusion is sufficiently stated and reasoned.
High though the standing and reputation of the UNHCR rightly is, the question the respondent must ask is not whether the UNHCR is satisfied with all aspects of the Belgian procedure but whether the risk just mentioned is present. Section 2 of the 1996 Act does not require the respondent to act as an enforcer of the UNHCR's comments upon the procedure operated in Belgium.
I would dismiss this appeal.
LORD LLOYD OF BERWICK:
LADY JUSTICE BUTLER-SLOSS:
I also agree.
Appeal dismissed; no order as to costs; legal aid taxation of the appellant's costs; application for leave to appeal to the House of Lords refused. (This order does not form part of the approved judgment)