Secretary of State for the Home Department v. Khalif Mohamed Abdi and Another

[1994] Imm AR 402

Hearing Date: 20 April 1994

20 April 1994

Index Terms:

Political asylum -- without foundation appeals dismissed by special adjudicators -- Secretary of State's certificates had asserted Spain was a safe country -- whether Secretary of State's decisions were Wednesbury unreasonable -- no evidence before special adjudicators that Spain was not a safe third country -- whether special adjudicators' decisions were irrational -- whether the Secretary of State was under a duty to put before special adjudicators all the evidence either way he had considered before concluding a third country was safe. Asylum and Immigration Appeals Act 1993 ss 2, 5, 8, 9, sch 2 paras 1, 5: Immigration Appeals (Procedure) Rules 1984 rr 8, 22(3); Asylum Appeals (Procedure) Rules 1993 rr 5, 6, 8, 9, 10, 11, 25, 31; HC 251 paras 180D, 180K; United Nations Convention relating to the status of refugees (1951), Protocol (1967) arts 1A (2), 33(1), 35.

Held:

Appeals by the Secretary of State against the judgment of Sedley J in which he had quashed the decisions of special adjudicators who had dismissed appeals by citizens of Somalia against the refusal of the Secretary of State to consider their applications for asylum on the merits. He had also quashed the Secretary of State's original decisions. The appellants had both arrived in the United Kingdom from Spain. The Secretary of State had certified that in his opinion their claims were without foundation: he had proposed returning them to Spain which he considered to be a third safe country. There had been no evidence before the special adjudicators that Spain was not a safe third country for the appellants. Before Sedley J it had been argued that there had been cases in which, it appeared, Spain had not carried out its obligations under the Convention. It was also argued that if the special adjudicators were to carry out an independent assessment of the opinion expressed by the Secretary of State in a "without foundation" certificate, there should be full disclosure by the Secretary of State of the information on which he had concluded that the third country concerned was a safe third country. Sedley J had granted judicial review both of the certificates of the Secretary of State and the determinations of the special adjudicators. He had held that in any fresh appeal it would be "for the Secretary of State to justify his certificate before an adjudicator in a hearing in which such material as may contribute to a full and fair decision, whichever way it points, has been furnished by both sides to the adjudicator and so far as is appropriate, by the adjudicator to both sides". Both issues before Sedley J were argued before the Court of Appeal. Held 1. The Secretary of State was entitled to rely on information from a variety of sources, including the Foreign and Commonwealth Office, in deciding whether a country was a safe third country. 2. The decisions of the Secretary of State were not irrational or illogical. 3. There was no obligation on the Secretary of State to provide to the parties and the special adjudicator, all the information on which he had relied. 4. The certificates provided some evidence that Spain was a safe country: there was no evidence before the special adjudicators that it was not a safe country. Unless the procedure itself could be faulted, the conclusions of the special adjudicators could not be faulted. 5. By a majority, the procedures had been laid down by Parliament to ensure the speedy determination of appeals and the court should not impose an additional requirement on the Secretary of State or special adjudicators. 6. Per Steyn LJ: the procedure laid down was so unfair as to be unlawful: it rendered ineffective fundamental rights of asylum seekers.

Cases referred to in the Judgment:

Wiseman v Borneman [1971] AC 297: [1969] 3 All ER 275. Bugdaycay and ors v Secretary of State for the Home Department [1987] AC 514: [1987] Imm AR 250. R v Monopolies and Mergers Commission ex parte Elders JXL Ltd [1987] 1 WLR 1221: [1987] 1 All ER 463. Secretary of State for the Home Department v Sivakumaran and ors [1988] 1 AC 958: [1988] Imm AR 147. Secretary of State for the Home Department v Sittampalam Thirukumar and ors [1989] Imm AR 402. R v An Adjudicatoir, Mr RG Care ex parte Secretary of State for the Home Department [1989] Imm AR 423. Huseyin Dursun v Secretary of State for the Home Department [1993] Imm AR 169. R v Secretary of State for the Home Department ex parte Senay Mehari and ors [1994] 2 WLR 349: [1994] Imm AR 151. Manickavasagar Thavathevathasan v Secretary of State for the Home Department [1994] Imm AR 249. R v Secretary of State for the Home Departinent and Special Adjudicators ex parte Khalif Abdi and Abdifatah Gawe (unreported, QBD, 4 March 1994).

Counsel:

D Pannick QC and J Ashford-Thom for the appellants; R Griffths QC and Miss C Fielden for the respondents PANEL: Neill, Steyn, Peter Gibson LJJ

Judgment One:

NEILL LJ: This is an appeal by the Secretary of State for the Home Department from orders dated 4 March 1994 made by Sedley J in proceedings for judicial review instituted by Mr Khalif Mohamed Abdi and Mr Abdifatah Abduleh Gawe. Both Mr Abdi and Mr Gawe were born in Somalia and are citizens of that country. Both are Moslems. On 10 November 1993 Mr Abdi left Somalia. He travelled to Spain via Kenya and Egypt reaching Barcelona on 22 November 1993. On 25 November 1993 Mr Abdi flew from Spain to Heathrow Airport, where he claimed asylum on the ground that he feared persecution in Somalia. Six days later, on 29 November 1993 a letter was sent to Mr Abdi on behalf of the Asylum Division of the Immigration and Nationality Department in the following terms: "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 of 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 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. 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." Mr Abdi then appealed to a special adjudicator in accordance with section 8 of the Asylum and Immigration Appeals Act 1993 (the 1993 Act). Mr John Fox, the special adjudicator, made his determination on 23 December 1993. In his written determination and reasons promulgated on 5 January 1994 Mr Fox recorded that Mr Abdi had been represented before him by Mr Bekoe of counsel and that the Home Office had also been represented. He added: "The United Kingdom representative of the United Nations High Commissioner for Refugees has indicated that he wishes to be treated as a party to the appeal and has submitted certain written representations . . ." Mr Fox then set out a summary of Mr Abdi's testimony before him. For the purpose of this appeal, however, the important parts of Mr Fox's determination are those passages which relate to the certificate contained in the last paragraph of the letter of 29 November. The relevant passages are as follows: "After reviewing the evidence submitted by the respondent and hearing the appellant's testimony at the hearing, it would seem that there is no conflict in the facts material to the Secretary of State's certification in this case.

. . .

As to the question of whether Spain was safe, [Mr Harper, who appeared on behalf of the Secretary of State] relied on the facts as set out in the letter of 29 November 1993. There was no evidence to show that Spain was not safe for this appellant.

. . .

I am satisfied from the totality of the evidence before me that Spain will comply with her obligations under the 1951 Convention Relating to the Status of Refugees." On 25 January 1994 Auld J granted leave to Mr Abdi to move for judicial review of: (1) The decision of the Secretary of State dated 2 December 1993 (possibly a mistake for 29 November 1993) to certify that Mr Abdi's claim for asylum was without foundation. (2) The determination of the special adjudicator dated 5 January 1994 to dismiss Mr Abdi's appeal. Mr Gawe arrived in Spain on 17 November 1993. It seems that he may have left Somalia in 1992 and have travelled to Spain via Kenya. On 25 November 1993 Mr Gawe flew from Barcelona to Heathrow, where he claimed asylum on the ground that he feared persecution in Somalia. On 1 December 1993 the Asylum Division of the Immigration and Nationality Department sent a letter to Mr Gawe in substantially the same terms as the letter to Mr Abdi dated 29 November. The letter to Mr Gawe referred to the fact that he had spent eight days in Spain whereas the letter to Mr Abdi recorded that Mr Abdi's period in Spain was only three days. Mr Gawe then appealed to a special adjudicator in accordance with section 8 of the 1993 Act. On 5 January 1994 Mr Victor Callender determined the appeal. In his written reasons Mr Callender recorded that Mr Gawe had appeared in person and that the Secretary of State had been represented by Mr A Dowdey. Mr Callender also recorded that the United Nations High Commissioner for Refugees had elected to be treated as a party to the appeal and had made certain written submissions. Mr Callender stated his conclusion in these terms: "I have considered all the evidence in the matter, also the submissions made on behalf of all parties. The Secretary of State having certified that in his opinion the appellant's claim to asylum is without foundation in that it does not raise any issue as to this country's obligations under the 1951 Convention, my first task is to decide whether or not I agree with that certificate. In doing so I follow the guidance given in the judgment of Laws J in the case of ex parte Mehari and others. I deal first with the written submissions of the United Nations High Commissioner for Refugees. These were to the effect that the decision not to consider the substance of the appellant's claim to asylum, but to remove him from the UK was wrong in law, in that it failed to take account of the UK's obligations under the 1951 Convention. A country in whose jurisdiction asylum has been sought is in principle under an obligation to consider the application substantively, and the asylum seeker cannot legitimately be removed to a third country unless it has previously been established that that country would admit him, would observe the principle of non-refoulement and generally treat him in accordance with generally accepted international standards. These submissions have effectively been dealt with in Mehari, in which the court rejected a submission by counsel substantially to the same effect. Mehari effectively lays down that the provisions of paragraph 180K of HC 725 are sufficient to satisfy the UK's obligations under the Convention. The onus is on the Secretary of State to satisfy me on the balance of probabilities that the provisions of that paragraph are met, but as was held in Mehari, that onus is discharged by the statement in 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.

. . .

. . . I find as a fact that [Mr Gawe] was in Spain before coming to the UK and I find that he had the opportunity to apply for asylum while in that country, had he chosen to do so. As I have already said, there is no evidence before me to suggest that Spain is not a safe country within the provisions of paragraph 180K of HC 725. There are in this case no particular circumstances which would justify the appellant's claim to asylum being considered substantively in this country as opposed to his being returned to Spain." On 25 January 1994 Auld J granted Mr Gawe leave to move for judicial review of: (1) The decision of the Secretary of State of 2 December 1993 (possibly a mistake for 1 December) to certify that Mr Gawe's application for asylum is without foundation; (2) The determination of the special adjudicator of 12 January 1994 to dismiss Mr Gawe's appeal. The applications by Mr Abdi and Mr Gawe for judicial review were heard by Sedley J on 23 and 24 February 1994. By orders dated 4 March 1994 he allowed the applications and quashed the decision of the Secretary of State and the determinations of the two special adjudicators. Before I consider Sedley J's judgment however, I must first set out the relevant legislation. The Legislation The United Kingdom was a signatory of the Convention relating to the status of refugees concluded at Geneva on 28 July 1951 (the Convention) and of the Protocol to the Convention signed in New York on 31 January 1967. Article 33(1) 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 group or political opinion." By article 1A(2) of the Convention (as amended) the term "refugee" applies to any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it . . .". The test of whether a person has a "well-founded fear of being persecuted" is an objective test: See R v Home Secretary ex parte Sivakumaran [1988] AC 958. It is also clear that in deciding whether a person has such a well-founded fear the Secretary of State and the immigration authorities may pursue enquiries abroad and consult official and unofficial organisations: see ibid at 996G per Lord Templeman. As Lord Donaldson MR explained in Dursun v Secretary of State for the Home Department [1993] Imm AR 169 at 170: "The Secretary of State in immigration matters, and in particular in refugee matters, is in constant contact with all sorts of other countries, through British Missions abroad and Foreign Missions in this country and it has been stated over and over again in the context of refugee cases that the Secretary of State is entitled to rely on information which comes to him through diplomatic and other channels." For some years, however, it has been the general policy of the Secretary of State not to investigate the merits of a claim for asylum where the person concerned has arrived in this country having passed through another country which is a signatory to the Convention and which is regarded as a safe country. This policy was set out in a policy statement by the then Secretary of State on 25 July 1990 pending the ratification by the United Kingdom of the Dublin Convention of 15 June 1990. The policy statement included this passage: ". . . An application for asylum from a passenger who has arrived in the United Kingdom from a country other than the country in which he fears persecution, will not normally be considered substantively. The passenger will be returned to the country from which he embarked, or to another country in which he has been since he left the country of feared persecution or, if appropriate, to his country of nationality, unless I am satisfied that the country is one in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion, or that it would return him to such a country." In the policy statement it was further made clear that if there was evidence of substantial links with the United Kingdom the claim for asylum might then exceptionally be considered on its merits. In the present case we are concerned with the changes in procedure which were introduced by the Asylum and Immigration Appeals Act 1993 (the 1993 Act). Among the changes effected by the 1993 Act has been the introduction by section 8 of a new system for appeals by asylum seekers who have been refused leave to enter the United Kingdom or against whom deportation orders, or certain other orders, have been made. Sections 8 and 9 of the 1993 Act contained provisions relating to rights of appeal. Section 8(1) is in these terms: "A person who is refused leave to enter the United Kingdom under the 1971 Act 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." The provisions in section 8, however, were made subject to schedule 2 to the 1993 Act which contained supplementary provisions relating to appeals to the special adjudicator. Furthermore, in paragraph 1 of schedule 2 it was stated that the appeal rights conferred by schedule 2 were to replace the rights of appeal previously given under Part II of the Immigration Act 1971. In the present case we are concerned in particular with the special procedures contained in paragraph 5 of schedule 2. Subject to an exception which has no relevance in this case, the paragraph 5 procedures apply to an appeal by a person under section 8(1) "if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation." It will be convenient to set out three sub-paragraphs of paragraph 5: "(4) Rules of procedure under Section 22 of the 1971 Act may make special provisions in relation to appeals to which this paragraph applies. (5) If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, Section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal. (6) If the special adjudicator does not agree that the claim is without foundation, he may (as an alternative to allowing or dismissing the appeal) refer the case to the Secretary of State for reconsideration; and the making of such a reference shall, accordingly, be regarded as disposing of the appeal." It will be seen therefore that the task of the special adjudicator on an appeal where the Secretary of State has given a certificate that the claim is "without foundation" is to decide whether or not he agrees that the claim is without foundation. On 26 July 1993 the Asylum Appeals (Procedure) Rules 1993 came in force. Part II of the rules contains provisions relating to appeals to special adjudicators. I should refer the rule 5 which, so far as is material, is in these terms: "(1) Subject to paragraph (2) the person making an asylum appeal ('the appellant') shall give notice of appeal not later than 10 days after receiving notice of the decision against which he is appealing. (2) The time limit for giving notice of appeal shall be 2 days in a case where -- (a) the appeal is made under Section 8(1) of the 1993 Act; (b) the appeal is one to which paragraph 5 of Schedule 2 to the 1993 Act applies (Secretary of State certifies claim to be without foundation); (c) there has been personal service on the appellant of the notice of the decision against which he is appealing.

. . .

(6) Upon receipt of notice of appeal (whether or not the notice was given within the time limit), the Immigration Officer or (as the case may be) the Secretary of State shall send to the appellant, to a special adjudicator and to the United Kingdom Representative of the United Nations High Commissioner for Refugees the documents specified in paragraph (3) together with (in the case of the appellant and the special adjudicator only) the original or copies of any notes of interview and of any other document referred to in the decision which is being appealed. (7) A special adjudicator may extend any time limit for giving notice of appeal provided he considers it necessary in the interests of justice. (8) An extension may be made under paragraph (7) notwithstanding the period prescribed by the time limit has already expired." I should also refer to parts of some of the other rules as follows: "6(1) The special adjudicator shall not later than 5 days after receiving a notice of appeal serve on -- (a) the appellant; (b) the Immigration Officer or (as the case may be) the Secretary of State; and (c) (if he has given notice in accordance with Rule 8(2)) the United Kingdom Representative of the United Nations High Commissioner for Refugees a notice of the date, time and place fixed for the hearing of the appeal. (2) The period specified in paragraph (1) shall be 3 days in a case where the appeal is one to which paragraph 5 of Schedule 2 to the 1993 Act applies (Secretary of State certifies claim to be without foundation).

. . .

8(1) The parties to an appeal shall be the appellant and the Secretary of State. (2) The United Kingdom Representative of the United Nations High Commissioner for Refugees shall be treated as a party to an appeal upon giving written notice to the special adjudicator at any time during the course of the appeal that he desires to be so treated.

. . .

11(1) Subject to paragraph (4), the special adjudicator shall, wherever practicable, pronounce the determination and the reasons therefor at the conclusion of the hearing.

. . .

(4) In an appeal to which paragraph 5 of Schedule 2 to the 1993 Act applies (Secretary of State certifies claim to be without foundation), if the special adjudicator agrees that the claim is without foundation, he shall at the conclusion of the hearing pronounce the determination and the reasons therefor and furnish every party to the appeal with written notice of that determination and reasons." It will be seen from the paragraphs in the rules to which I have already made reference that in cases where the Secretary of State has given a "without foundation" certificate stringent time limits are imposed. This emphasis on speed is reinforced by the provision in rule 9(2) that the special adjudicator is required to determine an appeal in a "without foundation" case not later than seven days after receiving notice of the appeal. Part V of the rules contains provisions as to the general procedure to be adopted. It is to be noted that only certain specified rules in the Immigration Appeals (Procedure) Rules 1984 apply to appeals to a special adjudicator under Part II of the 1993 rules. In particular it is to be noted that in a "without foundation" case the Secretary of State is not required to prepare an explanatory statement as provided for in rule 8 of the 1984 rules. On the other hand it is also to be observed that (by rule 22(3) of the 1993 rules), rule 25 of the 1984 rules does apply to an appeal to a special adjudicator. Accordingly a special adjudicator "may at any time request any party to the appeal to furnish any particulars which appear to be requisite for the determination of the appeal and thereupon that party shall send the particulars to the appellate authority." I should refer next to the Statement of Changes in Immigration Rules which were laid before Parliament on 5 July 1993. (HC 725). It is provided in paragraph 180D of HC 725 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 and Protocol. One turns therefore to paragraph 180K which, under the heading "Third Country Cases", is in these terms: "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 a third country before the removal of an asylum applicant." The effect of these various provisions appears to be that where a person arrives in this country and claims asylum the Secretary of State is entitled to refuse his application without substantive consideration of his claim to refugee status if the Secretary of State is satisfied: (a) that the applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution; (b) that the country from which he has arrived is a safe country; and (c) that the applicant had an opportunity while in the safe country to make contact with that country's authorities in order to seek their protection. If these conditions are satisfied the Secretary of State is then entitled to give a certificate that in his opinion the applicant's claim that his removal would be contrary to the United Kingdom's obligations under the Convention is without foundation. The certificate of the Secretary of State, however, is not the end of the matter, because an asylum seeker can invoke the special appeal procedure set out in paragraph 5 of schedule 2. The present appeals raise important questions as to how this special appeal procedure should operate. The applications for judicial review At the hearing of the applications for judicial review on 23 and 24 February, Sedley J was referred to the well-known passage in the speech of Lord Bridge in R v Home Secretary ex parte Bugdaycay [1987] AC 514 at 531F: "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." The judge was also referred to the recent decision of Laws J in R v Secretary of State for the Home Department ex parte Mehari [1994] 2 WLR 349, where Laws J considered five applications for orders of certiorari to quash the decisions of special adjudicators to whom appeals had been made under section 8(1) of the 1993 Act. In his judgment the judge recited a passage in the judgment of Laws J at 364H where he described the function of the special adjudicator on a section 8 appeal in these terms: "The discipline which this system imposes on the Secretary of State consists in the fact that the adjudicator must independently judge the merits of the certificate." It is clear that the judge attached great importance to the dictum of Lord Bridge in ex parte Bugdaycay (supra) (which he described as "the Musisi principle") when he came to set out his conclusions as to the respective functions of the Secretary of State and the special adjudicator in cases of this nature. He put the matter as follows: "(1) The nature and sources of information which he will review and use are a matter for the Secretary of State. There will, no doubt, be a minimum level of inquiry below which he cannot be said to be keeping himself informed at all, and there will be types of information which it will be unreasonable to rely on; but subject to these and other familiar public law constraints, it is not possible to deduce from his statutory functions any particular range or depth of inquiry which can be required of the Secretary of State by the courts. (2) However, the slenderer the range or quality of the Secretary of State's information, the less defensible his certificate will be before a special adjudicator, at least where countervailing evidence exists. (3) Such an evaluation, however, is possible only if the relevant material is properly exposed before a special adjudicator. In a situation in which it is to be expected that most or all of the information about the asylum practice of third countries is in the hands of the Secretaiy 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. (4) Adjudicators are not recruited from the Clapham omnibus. They are skilled and specialised office-holders carrying out an independent and, in many respects, judicial function of profound importance to the individuals who come before them. It is from their number that the Lord Chancellor selects the special adjudicators to hear appeals against certifications by the Secretary of State that a claim is without foundation. From case to case they will build up a fund of information about different third countries. It would be wrong, of course, for them to decide cases upon the basis of private information of this kind; but it would also, in my judgment, be wrong for them to ignore such information and close their minds to everything except the evidence that the Home Office chose or the applicant was able to put before them. The right course, in my view, replicating the long-established practice of other specialist tribunals (Rent Assessment Committees come readily to mind), is that where the special adjudicator is aware of some established or credibly asserted fact capable of having a bearing on his or her judgment, the adjudicator should tell the parties of it and give them a fair opportunity to make submissions either as to its factuality or as to its relevance. (5) 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 would 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." A little later Sedley J added: ". . . The Secretary of State is not like a private litigant: he is the holder of a public office, one of the great offices of State, and he owes duties of candour and helpfulness not only to individuals to whose immediate and perhaps ultimate fate he is responsible but to a statutory appellate tribunal such as the special adjudicator whose function is independently to do justice between the Secretary of State and the asylum seeker. Such a requirement is no more onerous than that articulated by Lord Donaldson MR in R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941 for public authorities whom a citizen has obtained leave to challenge by judicial review: 'to make full and fair disclosure'; 'to explain fully what has occurred and why'; to place 'all cards face upwards on the table'." The judge then turned to consider the two cases before him. He also made reference in this part of his judgment to a report in Amnesty International (published in July 1993) of the cases of two men who had fled from Colombia to the United Kingdom via Spain and who, having been returned to Spain as a safe third country, had then allegedly been returned by Spain to Colombia without any investigation of the substantive merits of their claims to asylum. The judge made this comment about the cases of the two Colombians: "[Counsel for the Secretary of State] has submitted that there is no evidence that either adjudicator was aware of the cases of the two Colombians; and that if they were aware of the cases they may have regarded them as aberrations and been satisfied that in all other cases Spain acted properly. One has only to state the submission to see the potential unfairness wrapped up in it. If either adjudicator was unaware of the Colombian cases, I have no doubt that he should have been made aware of them. If he was aware of them, whether he regarded them as aberrations is unknown, and whether he should have regarded them as aberrations was a matter for him after hearing what the parties had to say about them. On all these matters the applicants were in the dark." On pages 26 to 28 of his judgment the judge stated his conclusions. The judge's conclusion in relation to the decision of the Secretary of State was that it was "in logic untenable and in law therefore irrational". The judge based this conclusion on the information provided in the affidavit of Mr Mobbs about the number of asylum applications which had been accepted for consideration by the Spanish Government. The judge explained his conclusion in these terms: "The absolute numbers of asylum applications accepted for consideration by Spain in 1990 and 1991 are of negligible value in relation to the question which the Secretary of State and, in due course, the special adjudicator had to consider in late 1993. What mattered were recent comparative figures of the numbers of asylum applications not accepted by Spain for consideration and the reasons for non-acceptance. Did they include any, such as the two alleged Colombian cases, where the applicant had been returned to Spain as a safe third country to which there had already been an opportunity to apply for asylum? If so, on what ground were their applications not substantively considered by Spain? . . . The figures cited by the Secretary of State do not demonstrate anything of relevance." The judge's conclusion in relation to the decisions of the two adjudicators was that they had to be quashed for breach of natural justice. The judge explained this conclusion: "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. In consequence, neither applicant, in my view, had a fair hearing. On remission, it will equally be incumbent upon the adjudicator to make known for comment by either side any relevant facts, whether established or credibly asserted, within his or her own knowledge as an adjudicator." Sedley J accordingly quashed the decisions both of the Secretary of State and of the special adjudicators. At the end of his judgment he indicated that if there were a fresh appeal it would be "for the Secretary of State to justify his certificate before an adjudicator in a hearing in which such material as may contribute to a full and fair decision, whichever way it points, has been furnished by both sides to the adjudicator and, so far as appropriate, by the adjudicator to both sides." The Secretary of State has now appealed to this court. It will be convenient to deal first with the judge's orders in relation to the decisions of the Secretary of State. The decisions of the Secretary of State It was argued on behalf of the Secretary of State that Sedley J should have directed his attention exclusively to the decisions of the special adjudicators. It was their decisions which were in point because by section 8 of the 1993 Act an appeal lay from the decision of the Secretary of State to a special adjudicator. I see great force in this submission because as a general rule the courts will not grant judicial review of a decision against which an alternative method of challenge is available. Moreover in the present cases the special adjudicators themselves had to determine whether or not they agreed that the claims for asylum were without foundation. As, however, I am satisfied that on the facts of these cases Sedley J was wrong to conclude that the decisions of the Secretary of State were irrational, I do not find it necessary to determine whether there may not be some exceptional cases where proceedings for judicial review of the original decision of the Secretay of State may lie. In his judgment the judge placed particular reliance on the figures for asylum applications which were accepted for consideration in Spain in 1990 and 1991. In placing such emphasis on the figures it seems to me, with respect, that the judge gave wholly inadequate weight to the matters set out in paragraph 7 of Mr Mobbs' affidavit, although it is right to point out that the judge included this paragraph in his judgment. In his affidavit Mr Mobbs set out the reasons why the Secretary of State considered Spain to be a safe country. These reasons can be summarised as follows: (a) The figures set out in paragraph 3. (b) The information gathered by the methods explained in paragraph 7. (c) The fact that, apart from the Colombian cases, no evidence had been put forward to suggest that Spain was not a safe country. (d) The assessment made by the Secretary of State that even if the Amnesty International reports were true the two cases could be regarded as "extraordinary incidents wholly out of keeping with the normal practice of the Spanish authorities." As I have mentioned earlier, it is well recognised that the Secretary of State is entitled to rely on information received from a variety of sources including the Foreign and Commonwealth Office in deciding whether an applicant for asylum has a well founded fear of persecution. I can see no reason why a similar approach should not be adopted in the case of information gathered by the Secretary of State for the purpose of deciding whether a country was a safe country or not. Looking at Mr Mobbs' affidavit as a whole I can see no basis for holding that the decisions of the Secretary of State to the effect that Spain was a safe country were irrational or illogical. I turn therefore to the decisions of the special adjudicators. The decisions of the special adjudicators I have found this part of the case much more troublesome. One starts with what has been called the Musisi principle, namely, that when an administrative decision is one which may put the applicant's life at risk "the basis of the decision must surely call for the most anxious scrutiny". To the same effect were the words of Bingham LJ in Secretary of State for the Home Department v Thirukumar and ors [1989] Imm AR 402, where he said at 414 "that asylum decisions are of such moment that only the highest standards of fairness will suffice". It is also clearly right, as Laws J observed in Secretary of State for the Home Department ex parte Mehari (supra) at 364H "that the adjudicator must independently judge the merits of the certificate". Finally one must not overlook the fact that in an appropriate case the court has the power to supplement a procedure laid down in legislation if "the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation": see Wiseman v Borneman [1971] AC 297 at 308C per Lord Reid. It was argued on behalf of Mr Abdi and Mr Gawe that the decisions of the special adjudicators should be quashed not only because they were reached contrary to the rules of natural justice but also because there was no evidence before them that Spain was a safe third country. The certificates contained in the two decision letters of the Secretary of State contained no evidence but amounted merely to assertions. At the least the Secretary of State should have referred the special adjudicators to the reports by Amnesty International in the cases of the Colombians. It was pointed out that in the case of another asylum seeker called Mr Hagi, the special adjudicator, on being acquainted with the contents of the Amnesty International reports had referred the matter back to the Secretary of State. In that case Mr Care, the Deputy Chief Adjudicator, had concluded that he did not agree with the certificate that the claim was without foundation and he referred it back under the provisions of paragraphs 5(6) of schedule 2 to the 1993 Act. In addition counsel referred us to the judgment of Glidewell LJ in R v Home Secretary ex parte Thavathevathasan (1993) (unreported) (See now [1994] Imm AR 249), where he said, in relation to the function of a special adjudicator: transcript 7E): "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." There is another feature about these cases which is of concern. It will be remembered that in accordance with rule 5(6) of the 1993 Rules a copy of a notice of appeal has to be sent to the United Kingdom representative of the United Nations High Commissioner for Refugees. In addition under rule 8(2) the United Kingdom representative is to be treated as a party to an appeal if he so desires. We were also informed that it is the practice to notify the Refugee Legal Centre about "without foundation" asylum cases. In the light of the information which we were given both during the course of the hearing and subsequently in an affidavit sworn by Miss Debbie Winterbourne of the Refugee Legal Centre on 30 March 1994 it seems doubtful, however, whether there is any satisfactory machinery in existence to ensure that an asylum seeker, particularly where he or she may have no knowledge of the English language, has an opportunity to make adequate representations to the special adjudicator about the facts of his or her individual case. It is true that in the present cases the United Kingdom representative did not seek to put before the special adjudicator any evidence or argument to suggest that Spain was not a safe country. As the decision of the adjudicator in the case of Mr Gawe makes clear, the submissions of the United Kingdom representative were directed to showing that the United Kingdom was wrong as a matter of principle to decline to deal with the substance of the claims. But Miss Winterbourne has set out in her affidavit reasons why in her judgment neither the United Nations High Commission for Refugees nor the Refugee Legal Centre can be regarded as a satisfactory "safety net" so as to ensure that without foundation asylum cases are dealt with on the basis of up-to-date and correct information. Furthermore, it seems clear that legal aid is not available for any appeals under this special procedure. On the other hand one has to recognise that this is a procedure which Parliament has authorised. Moreover it is not suggested that there is any principle contained in European Community legislation which can be relied upon by Mr Abdi and Mr Gawe. It seems to me therefore that, faced with the regime authorised by Parliament, one must address the following questions: (1) Was there any obligation on the Secretary of State to make available to the special adjudicators all the material which was available to him at the time when he made the decisions, or alternatively, at any rate the Amnesty International reports about the Colombian cases? (2) If the Secretary of State was not under any such obligation, were the special adjudicators entitled on the material before them to uphold the certificates? (3) Was the procedure adopted by the special adjudicators otherwise so contrary to the rules of fairness and natural justice that the court should intervene? I turn first to the obligations of the Secretary of State. (1) Was the Secretary of State under an obligation to provide information to the adjudicators? Rule 5(6) of the 1993 Rules specifies certain documents which must be supplied to the special adjudicator. But it is to be noted that these documents do not include an explanatory statement under rule 8 of the 1984 Rules because rule 8 does not apply to this special procedure. In the light of these specific provisions it seems to me necessarily to follow that the obligations of the Secretary of State cannot extend to providing to the special adjudicator or to the appellant copies of the material which led him to conclude that the claim to asylum was without foundation. It is said in the present cases that the special adjudicators should at least have been shown the Amnesty International reports about the two Colombians so that the adjudicators could reach their own conclusions about the importance of those two cases. But, as I see it, there would be great difficulties about making a partial disclosure of the material available to the Secretary of State. In my judgment the duty of the Secretary of State is to make sure that the question whether a country is safe is properly considered and that the view which is expressed is given in good faith and in accordance with a careful assessment of the material available. He is also under a duty to furnish any particulars which may be requested under rule 25 of the 1984 Rules and also to comply with any other provisions of the 1984 Rules which are applied by the 1993 Rules to these appeals. I do not consider, however, that on the facts of these cases his duty extended any further. I turn to the second question. (2) Was there material before the special adjudicators on which they could uphold the certificates? I feel bound to say that I am troubled by the present procedure. The special adjudicators are experts in their field, but we have no information as to what background material is available to them. I would hope that it is, or will become, the practice for them to be provided with reports such as those prepared by Amnesty International so that they can be in a position to exercise their powers under rule 25 to ask for further particulars if they need additional information. It is at least probable that asylum seekers such as Mr Abdi and Mr Gawe will have no knowledge about the third country through which they have passed on the way to the United Kingdom and may have no means of finding out whether it is safe or not. But these adjudicators had to act on the material before them. I have already drawn attention to the time constraints within which the special adjudicators must carry out their work. The procedure is clearly intended to operate speedily and, exceptionally, it provides for an appeal procedure which can be invoked by an appellant while still in this country. I have come to the conclusion that the decisions of the special adjudicators cannot be impugned. The certificates in the decision letters provided some evidence that Spain was a safe country; indeed the decision that Spain was safe was necessarily a value judgement. There was no material before them to the contrary. In these circumstances I consider that unless the procedure itself can be challenged they were entitled to uphold the certificates. (3) Can the court interfere on the basis that the procedure was contrary to natural justice? I would pay tribute to the careful judgment of Sedley J in this case and I share many of his anxieties. I have come to the conclusion, however, that the court has to give effect to the fact that this procedure is a statutory procedure which has received the imprimatur of Parliament. The special adjudicators constitute the tribunals who are designated to determine these appeals. The procedure for the appeals is set out in the 1993 Rules. In my judgment it is not open to this court to impose additional obligations either on the Secretary of State or the special adjudicators. If one were to try to supplement the statutory procedure in order to achieve justice it seems to me that the additional steps would be likely to "frustrate the apparent purpose of the legislation", which is clearly designed to achieve a very quick determination of appeals brought under section 8(1) of the 1993 Act. I would therefore allow the appeals. I would only add that I am glad to know that the Secretary of State has decided that, because of the lapse of time, the applications for asylum by Mr Abdi and Mr Gawe will be considered on their merits.

Judgment Two:

PETER GIBSON LJ: Sedley J held that in each of the two cases not only the decision of the special adjudicator upholding the certificate of the Home Secretary but also the decision of the Home Secretary in so certifying should be quashed. In my judgment whether the Home Secretary was right or wrong in each case was a question for the special adjudicator to determine on the appeal to him. Parliament having introduced an appeal procedure by section 8 of the Asylum and Immigration Appeals Act 1993, in accordance with ordinary judicial review principles, when an effective alternative remedy is available it was not for the court to entertain an application for judicial review of the Home Secretary's decision. Apart from commenting that for the reasons given by Neill LJ I do not accept the judge's conclusion that the Home Secretary's decision was irrational, I shall confine this judgment to a consideration of whether the judge was right to conclude that the decisions of the special adjudicators should be quashed. The essence of the decision of Sedley J is contained in the following passage from his judgment (at p 26 of the transcript): "In my judgment, the decision of each adjudicator in the present two cases falls 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. In consequence, neither applicant, in my view, had a fair hearing." The disclosure to which the judge held the asylum seeker was entitled was that to which the judge had referred earlier (at pp 18, 19 of the transcript): "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 . . ., but to disclose any factual material pointing in the opposite direction." The finding by the judge of a breach of natural justice appears therefore not to be a finding that there had been a breach of either of the two traditional principles of natural justice, usually expressed in the Latin maxims nemo judex in causa sua (the adjudicator must be disinterested and unbiased) and audi alteram partem (the party who may be held liable or against whom a decision may be made should be given an opportunity to be heard on what is alleged against him). Instead the finding is one of a breach of natural justice in the looser and more general sense of a procedural unfairness. Mr Pannick for the Home Secretary accepts as the guiding principle the statement by Lord Reid in Wiseman v Borneman [1971] AC 297 at p 308: "Natural justice requires that the procedure before any tribunal which is acting judicially should be fair in all the circumstances." Lord Reid said that the courts can supplement procedure laid down in legislation but only where they have found that to be necessary for the purpose, and he added the following qualification: "before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation." Lord Reid's remarks were made in the context of a case in which the taxpayer claimed unsuccessfully that the statutory procedure, allowing the Revenue to present to a tribunal a statement which the taxpayer did not see and to which he had no opportunity to reply, offended against the rules of natural justice. The judge found to be "of determinative importance" what he called the Musisi principle, the statement by Lord Bridge in R v Home Secretary ex parte Bugdaycay [1987] AC 514 at p 531 when dealing with the case of the asylum seeker Musisi: "Within those limitations 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." It is plainly right to subject to anxious scrutiny a decision, whether administrative or judicial, which, if the asylum seeker's claim is correct, might cause him to be returned to a country in which his life or freedom would be threatened on account of his race, religion, membership of a particular social group or political opinion. But Lord Bridge made clear, by prefacing his remarks with "within those limitations", that the scope for review of what was then the Home Secretary's administrative decision was limited in accordance with ordinary judicial review principles ([1987] AC 514 at pp 522, 523 and 531). There was no question under those principles of the Home Secretary being under a duty to produce evidence. Thus in Durson v Secretary of State for the Home Department [1993] Imm AR 169, in a case where the asylum seeker had come from Turkey to the United Kingdom via a third country, Belgium, it was argued that it would be unfair to send the asylum seeker back to the third country, as the Home Secretary proposed, because the Home Secretary had produced no evidence that Belgium would be prepared to entertain an application for asylum. This court rejected that argument. Indeed no authority whatever has been cited by Mr Griffiths, for the respondents, to suggest that there was a duty on a party in the position of the Home Secretary to produce material which might assist an appellant appealing from the Home Secretary's decision. The judge appears to have based his conclusion on the consideration that the special adjudicator was intended to make "a rigorous and truly independent appraisal" of the decision of the Secretary of State. I accept that Parliament must be taken to have intended the introduction of an effective appellate procedure by section 8 of the 1993 Act whereby an asylum seeker, refused leave to enter the United Kingdom or directed to be removed from the United Kingdom, was given the right to appeal to a special adjudicator against the refusal or direction on the ground that it would be contrary to the United Kingdom's obligations under the Convention. That entails that the special adjudicator's role in that procedure should be both independent and effective. But before a court is justified in imposing on a party to the appeal a duty of disclosure which is not contained in any of the statutory provisions, careful consideration must be given to the details of the statutory scheme to see whether any such addition is necessary to achieve procedural fairness and is not inconsistent with that scheme and that purpose. It is apparent from paragraph 5 of schedule 2 to the 1993 Act and from the rules of procedure made pursuant to paragraph 5(3) of that schedule and to section 22 of the Immigration Act 1971 (the Asylum Appeals (Procedure) Rules 1993, (SI 1993:1661)) which were laid before Parliament before they came into force) that the intention was to institute a speedy regime to deal with the claims of asylum seekers and an even speedier regime where the Home Secretary certifies that such a claim is without foundation. Whereas an asylum seeker ordinarily has 10 days, after receiving notice of an adverse decision, in which to appeal, in a case where the Home Secretary has certified the claim to be without foundation, the asylum seeker has only two days (rule 5(1) and (2) of the 1993 Rules). In the ordinary case the special adjudicator, on receiving a notice of appeal, has five days to serve notice of the date, time and place for the appeal, but that period is reduced to three days for a without foundation case (rule 6(1) and (2) ibid). In the ordinary case the special adjudicator has to pronounce the determination and the reasons therefor at the conclusion of the hearing only "wherever practical": that qualification is removed in every without foundation case where the special adjudicator agrees that the claim is without foundation (rule 11(1) and (4) ibid). No provision was made for an appeal by an asylum seeker from the special adjudicator to an Immigration Appeal Tribunal. It is true that there is a power for the special adjudicator to extend the time-limit for giving notice of appeal (rule 5(6) ibid), to adjourn hearings (rule 10(1) ibid) and to extend time-limits generally (rule 31(1) ibid). But speed is plainly of the essence in the procedure that has been laid down with the approval of Parliament, the obvious reason being that any delay will render the return of the asylum seeker to the third country difficult if not impossible. The 1993 Rules specifically include some, but not all, of the Immigration Appeals (Procedure) Rules (SI 1984: 2041): rule 22(3) of the 1993 Rules. Significantly, but consistently with the intention that the procedure should be speedy, rule 8 of the 1984 Rules (requiring an explanatory statement of the facts relating to the decision or action in question and the reasons therefor to be prepared by the Home Secretary and made available to the appellant and the adjudicator) is not made applicable to appeals by asylum seekers. However the 1993 Rules importantly make rule 25 of the 1984 Rules applicable, and this allows the special adjudicator to request any party to furnish any particulars which appear to be requisite for the determination of the appeal. It is common ground that the onus is on the Home Secretary to satisfy the special adjudicator that his certificate is good (see R v Secretary of State for the Home Department ex parte Mehari [1994] 2 WLR 349 at p 357), and if the special adjudicator is not satisfied that the Home Secretary has adequately explained his opinion in the certificate, he can insist on further particulars, with the ultimate sanction of allowing the appeal if he remains not satisfied. The 1993 Rules are specific as to which documents are to be supplied by the Home Secretary to the special adjudicator and the appellant, viz the formal documents necessary for a notice of appeal, any notes of interview and any other document referred to in the decision under appeal. The formal documents must also be sent to the United Kingdom representative of the United Nations High Commissioner for Refugees (UNHCR). There is also power under rule 27 of the 1984 Rules (made applicable by rule 22(3) of the 1993 Rules) for the special adjudicator to require the attendance at the hearing of the appeal of any person, and such person can be required to produce relevant documents in his custody or under his control. But there is no requirement on the Home Secretary to give general discovery (R v An Immigration Adjadicator ex parte Secretary of State for the Home Department [1989] Imm AR 423) nor specific discovery in the absence of an exercise of the power under rule 27. By reason of article 35 of the Geneva Convention the United Kingdom, like other Contracting States, is under an obligation to co-operate with the UNHCR and to provide him with information and data concerning the implementation of the Convention. It was no doubt partly in performance of that obligation that special provisions were inserted in the 1993 Rules to ensure that the UNHCR is informed of all appeals by asylum seekers and to allow him to be treated as a party to an appeal if he gives notice of a desire to be so treated (rules 5(6) and 8(2) ibid). But it may also be inferred that the UNHCR was intended to be a source of assistance and information for the appellant and the special adjudicator if there was anything in the Home Secretary's certificate to which the UNHCR took objection. If, for example, a third country was said by the Home Secretary to be a safe country but the UNHCR knew by reason of the information and data supplied to him pursuant to article 35 that this was not the case, it would be surprising if the UNHCR did not say so. In the present case, while the UNHCR made observations about the proper interpretation of the Convention, he did not suggest that Spain was not a safe country to which an asylum seeker might be returned. Another source of assistance for the asylum seeker is the Refugee Legal Centre, as Parliament would have been aware. This, the judge noted, is funded principally by the Government and partly by the UNHCR. Each asylum seeker is given a written notification by the Home Office before his first interview that he may contact the centre for free advice on his application after the initial interview has been carried out. The form of notification is in English but the language in which the explanation of the form has been made has to be inserted in the form. It is signed by the asylum seeker who is asked to declare if he wishes to be provided with an interpreter. The centre can provide representation on an appeal if the asylum seeker wishes. We are told that in only about 30-40% of without foundation cases does the centre represent asylum seekers. Against this background must be answered the question posed by Lord Reid's principle in Wiseman v Borneman: is it clear that the statutory procedure is insufficient to achieve justice and that to require the additional disclosure suggested by the judge is necessary and would not frustrate the apparent purpose of the legislation? I do not doubt that it is possible to devise fairer procedures than those approved by Parliament, but I find it quite impossible to say that the statutory procedure is insufficient to achieve justice. The asylum seeker is given a hearing before an independent adjudicator and is informed in advance of the hearing of what the Home Secretary alleges. If the Home Secretary fails to discharge the onus on him to establish what he has certified the appeal will be allowed. I cannot accept the judge's reasoning that unless there is a duty on the Home Secretary to produce to the special adjudicator such material as the Home Secretary has rejected, the 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." That seems to me to belittle the function of the special adjudicator under the statutory scheme and to ignore his powers to which the judge makes no reference. I do not see that it is necessary to import a novel duty on the Home Secretary to disclose any factual material available to him but pointing against the correctness of the certificate. Further, to require such material as well as all the material on which the certificate was given to be produced in every case would be inconsistent with the statutory scheme and would frustrate its plain purpose of a speedy procedure. It is true that in R v Secretary of State for the Home Department ex parte Thavathevathasan (unreported, 22 December 1993) (See now [1994] Imm AR 249) Glidewell LJ said of the special adjudicator's functions: "He must consider, whether on the material before the Home Secretary . . . the conclusion which the Home Secretary reached is justified." But that remark was obiter and cannot be taken to lay down the scope of the material to be put before the special adjudicator. The Crown being one and indivisible, the Home Secretary may well have a mass of material from his own and other Government departments available to him and his knowledge of a third country may be based on many items of information obtained over a number of years. Whilst there is much to be said for a requirement on the Home Secretary to produce an explanatory statement of the facts on which the certificate is based, we know that such a requirement was deliberately excluded from the 1993 Rules. The protection for the asylum seeker lies in the placing on the Home Secretary of the burden of satisfying the special adjudicator that the certificate is well founded. Accordingly I have reached the clear conclusion that, with all respect to the judge, his approach cannot be supported. The implication of a duty of disclosure on the Home Secretary or his representative is not justified. I turn to the question whether on the particular facts of the present cases the decisions of the special adjudicators can be impugned. The judge criticised the acceptance by the special adjudicators of the Home Secretary's certificates on the ground that they expressed conclusions, not evidence, and Mr Griffiths repeated that criticism. For my part, I cannot accept that either certificate was invalid on this ground. The only statutory requirement on the Home Secretary is to certify "that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation" (paragraph 5(1) of schedule 2 to the 1993 Act). The form of certificate used was, we were told by Mr Pannick who had appeared as counsel in the Mehari case, similar to those to which that case related and no point was taken on that form in that case. The certificates in fact go beyond bare certification and explain why the Home Secretary has given his certificate. In each decision letter is pointed out that Spain is a signatory to the Geneva Convention and that the Home Secretary, on the basis of his knowledge of the immigration policies of Spain and on previous experience in returning passengers to Spain, has no reason to believe that the Spanish authorities would not comply with Spain's obligations under the Convention. If the special adjudicator thought any of this unconvincing or wanted further details, he could have asked for further particulars or questioned the Home Secretary's representative at the hearing. For these reasons, as well as for those given by Neill LJ in his judgment, I would allow the appeal in each of the two cases.

DISSENT By-1: STEYN LJ

DISSENT-JDGMT-1:

STEYN LJ: The lot of refugees is often a desperate one. The spectre of torture or death, or both, often haunt them. The Amnesty International reports graphically document the scale of the inhumanity of man to man. That is why it is right to treat the rights of asylum seekers as fundamental rights. In a European democracy founded on values of liberty and humanity, such as ours, our law accords special protection to such fundamental rights. Everybody should know this. Parliament certainly does. The courts can therefore accept as a working assumption that Parliament would not curtail such rights by a side-wind but only by the clearest provision in the plainest English if it considered that such fundamental rights of refugees should be sacrificed in aid of the economic prosperity of the citizens of this country. Mr Pannick, QC, who appeared for the Secretary of State, said the case was of fundamental importance. He also said it was a very difficult case. I agree on both points. The case involves in acute form a tension between the obligation to grant asylum to genuine refugees and a natural desire on the part of this country not to be exploited by the entry of refugees who are not entitled to refugee status in this country as opposed to third countries. That is the problem that the legislation of 1993, primary and subordinate, sought to address. It did so in the context of the Convention related to Refugees (Geneva, July 1951) and the Protocol to that Convention (New York, January 1967), which by the express provision of section 2 of the Asylum and Immigration Appeals Act 1993 has a primacy in our law. The decisions under review Both applications challenge decisions affecting these applicants at two levels. First, they challenged the decisions of the Secretary of State. He certified that the applicants' asylum applications were without foundation. Secondly, they challenged the decisions of special adjudicators, who heard appeals from the Secretary of State's decisions. Sedley J decided in favour of the applicants in respect of the decisions at both levels. It would always have been our duty to consider the questions of law canvassed before us against the range of problems which may arise. Since the decisions under review are now academic, inasmuch as both applications for asylum will be substantively considered, our duty to consider the problems in a general way is underlined. And there is, of course, no doubt that in the area of public law the court's power to pronounce on such issues is not tied to the circumstances of individual cases. The decision of the Secretary of State In both cases the Secretary of State decided that Spain was a safe country to which the applicants could be returned without fear that Spain would not comply with the Convention of 1951 or the Protocol of 1967. Sedley J held that the Secretary of State acted irrationally in concluding that Spain was a safe country on the sole basis of the number of cases in which Spain granted asylum. There is considerable logical force in the judge's reasoning. But I am persuaded by Mr Pannick's argument that the judge was not hearing an application for judicial review of a decision of the Secretary of State. He was hearing an application for judicial review of the decisions of the special adjudicators on the merits of the Secretary of State's certificates. I accept that what matters are the decisions and reasoning of the special adjudicators. Without expressing any view on other situations where two-tier administrative decisions may be involved. I would hold that in the present context only the decisions and the reasoning of the special adjudicators matter. The decisions of the special adjudicators On behalf of the applicants Mr Griffiths, QC, made two submissions. The first was that there was no evidence or material of any probative value before the special adjudicators upon which they could legitimately have found that Spain was a safe country. This submission was not made before Sedley J. But Mr Pannick takes no technical point on this issue. It was fully canvassed before us. The second submission was that there was procedural unfairness in the proceedings before the special adjudicators inasmuch as the representative of the Home Office failed to disclose factual material tending to show that Spain was not a safe country. No evidence In R v Secretary of State for the Home Department, ex parte Mehari [1994] 2 WLR 349 Laws J held, in the context of the present legislation, that the burden rests on the Secretary of State to satisfy a special adjudicator that the certificate is good. To that extent I am in agreement with the judgment of Laws J in Mehari. I refrain, however, from expressing any view on other aspects of this judgment which have not been debated before us. On the question of burden of proof Mr Pannick concedes that Mehari was correctly decided. I need therefore not struggle with this obvious point. The only material tending to suggest that Spain is a safe country which was placed before the special adjudicators is a paragraph in the decision letters. It appears in identical terms in both decision letters. It states: "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." It seems likely that this is a standard form letter which serves to communicate the Secretary of State's "without foundation" certificates. The assertion in the letters, which I have quoted, amounts to no more the ipse dixit of the Secretary of State. It is a conclusion which does not reveal the evidence or material on which it is based. When produced to the special adjudicator the letters amounted to no more than a statement by the Secretary of State to the special adjudicator that "Spain is safe because I say so". Given the context that a special adjudicator is obliged to consider the matter independently and de novo I am satisfied that it does not by itself amount to evidence or material having probative force. Mr Pannick tried to rely on Spain's membership of the European Union as constituting evidence in support of the special adjudicators' decisions. This is not a fact mentioned by the special adjudicators. In any event, in the ceaseless endeavour to ensure that Contracting States carry out those obligations under the 1951 Convention and the 1967 Protocol members of the European Union are not immune from lapses. I would reject this contention. One other possibility must be considered. It is, of course, possible that by experience the special adjudicators were possessed of information tending to show that Spain was a safe country. They did not, however, say so. And, in any event, they would have been obliged to disclose such special knowledge before or at the oral hearings to the applicants in order to afford the applicants a fair opportunity to deal with it. In my judgment it follows that the two decisions before us were made without evidence or material of any logical probative force, and both decisions were accordingly unlawful. Disclosure That brings me to a point of general importance, namely Sedley J's ruling that in the proceedings before special adjudicators there was a legal duty upon the representative of the Home Office to disclose material facts tending to prove or disprove the safety of a third country. In his careful and important judgment the judge's essential conclusion was as follows: "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 judgement except where an applicant was independently able to cast doubt upon the basis of the certificate." Mr Pannick challenged this conclusion. But I fear the legal position adopted by the Secretary of State, as explained by Mr Pannick, remained as far as I am concerned unclear until the end. I asked Mr Pannick in argument to deal with a point which worried me, namely whether his argument did not place him on the horns of a dilemma. If the representative of the Home Office placed no evidence before a special adjudicator about the safety of a third country, a decision by the special adjudicator that the third country was safe would generally be insupportable. On the other hand, the representative of the Home Office might place positive evidence of the safety of the third country before the special adjudicator. In such cases, the question seemed to arise whether the Secretary of State asserted the right in law to place before a special adjudicator only evidence tending to prove the safety of a country while withholding evidence to a contrary effect. That seemed to me a difficult position for counsel for the Secretary of State to maintain. Quite possibly I asked the question at the wrong time. But Mr Pannick did not attempt to answer it, let alone answer it satisfactorily, at any time during the course of his speech. After he had completed his speech I reminded him of this point. I am afraid his answer was opaque. The best summary I can give of the tenor of his answer is that it would be wrong to think that the Home Office would not act properly. That is no doubt right but all institutions of government, including the Home Office and the courts, are fallible. What is at stake are not mere matters of etiquette but general questions of law regarding public law duties and rights. The force of the view I have expressed is underlined by the concession made by Mr Pannick that if the special adjudicator calls for material tending to show that a third country is unsafe, the Home Office representative is in law bound to provide it if it exists. Why should his duty to make an even-handed disclosure depend on a request by the special adjudicator? In the cases before us, the Secretary of State, in accordance with the affidavit sworn by one of his officials, was aware of the Amnesty International report suggesting breaches by Spain of the Convention. And that information persuaded one special adjudicator in an earlier case that Spain was not a safe third country. It is surely wrong, if there are material facts, which the Secretary of State considered in the course of his decision, not to place it before the special adjudicator. But the importance of the case merits further analysis. Important cases often turn on narrow points. In my view the result of this case ought to turn on two points of principle, one being common ground and the other disputed. First it seemed to me that by enacting the 1993 legislation, primary and subordinate, the legislature intended to create an effective system for safeguarding the rights of refugees. It was not intended to be a token obeisance towards this country's obligations under the Geneva Convention. On the contrary, it was intended to confer on refugees effective remedies to protect their fundamental rights. In response to a direct question from the court Mr Pannick confirmed in unequivocal terms on behalf of the Secretary of State that he accepted this premise. But it is a point of supreme importance. If the procedural system set out in the legislation is not by itself effective to protect the rights of refugees it opens up the possibility of the common law supplementing the legislation in aid of procedural fairness. The second point of principle concerns the circumstances in which the common law rules of procedural fairness may be allowed to supplement express rules of procedure contained in legislation. Sedley J held that the system introduced in 1993 will only effectively safeguard the rights of refugees if the Home Office accepted an obligation to disclose material facts tending to prove and disprove that a third country is a safe country for the refugee to be returned to. The theme of Mr Pannick's submission was that such an auxiliary right of disclosure, in aid of a refugee's fundamental substantive rights, is excluded by the terms of the 1993 legislation. He said it was contrary to the scheme of the legislation. What does this submission mean? A statute might explicitly provide that a statutory procedural code is exhaustive of the procedural rights of an applicant or appellant. That is a rare provision. And nothing approaching it appears in the present legislation. So Mr Pannick's submission must rest on an implied ouster of the rules of procedural fairness. I accept that the more detailed and comprehensive a statutory procedural code is, the more likely it is that the common law rules of procedural fairness will not operate. But the statutory code in this case is skeletal, and a wide discretion in regard to the conduct of appeals is expressly entrusted to special adjudicators. Rightly Mr Pannick has not attempted to suggest that the legislation deals comprehensively with procedural problems that can arise. In dealing with the particular procedural right in issue -- a right to even-handed disclosure by the Home Office representative -- Mr Pannick was unable to point to any feature of the legislation which is inconsistent with the existence of such a duty of disclosure. When analysed Mr Pannick's arguments amount to no more than saying that Parliament omitted to provide for a disclosure of material facts pertinent to the decisions of a special adjudicator. And the story of the development of our administrative law particularly over the last three decades is the story of the common law repeatedly supplementing the omissions of the legislature about providing for procedural fairness in decision-making. Parliament knows this and legislates on this basis. That seems to me to be a convention of our system of government which serves to demarcate the roles of an omnipotent parliament and the courts. But I need to examine Mr Pannick's specific written and oral submissions in more detail. He argued that a duty of even-handed disclosure, such as Sedley J envisaged, would frustrate the aim of the legislation. It is therefore necessary to analyse Mr Pannick's arguments not in a general way but with specific reference to the question whether he has made good the implied proposition as to the aim of the legislation. It will be convenient to do so in numbered paragraphs, slightly rearranged from the order adopted by Mr Pannick. (1) Mr Pannick pointed out that paragraph 5(6) of the Asylum (Procedure) Rules 1993 provides that an asylum seeker who appeals against a decision of the Secretary of State must be sent only copies of notes of interview and any document relied upon in the decision letter. Counsel suggested that there was no entitlement to further information. This argument lost sight of the discretion of a special adjudicator to order particulars to be delivered or documents to be produced: paragraphs 25, 27 and 28 of the Immigration (Procedure) Rules 1984. In any event, in administrative law it is not the form that matters but the substance. I would reject the notion that the question whether a document should be produced, in order to ensure fairness, turns exclusively on the coincidence whether it is mentioned in a decision letter or not. The narrow terms of paragraph 5(6) are plainly not apt to exclude the possibility of the common law supplementing the legislation. (2) Counsel then pointed to the fact that in the context of an appeal to a special adjudicator under the 1993 Act, Parliament has excluded the obligation on the Secretary of State in ordinary immigration appeals to provide an explanatory statement: see rule 8(1) of the Immigration Appeals (Procedure) Rules 1984, as disapplied by rule 3(2) of the 1993 Procedure Rules. Again, the point advanced is a narrow and technical one. In any event, since an appeal against the certificate of the Secretary of State, that the third country is safe, is the matter in issue, there was much to be said for the view that an explanatory statement is only essential to a hearing on the substantive merits of an asylum application but not necessarily to a narrower case of an appeal against the Secretary of State's "without foundation" certificate. In any event, this provision is also plainly not apt by itself to exclude the possibility of the common law supplementing the statute. Here I pause to repeat that counsel was not able to argue, and did not, that the legislature provided a comprehensive and exhaustive code of procedure which necessarily excluded the application of the common law. (3) In reliance on a decision of Roch J (now Roch LJ) in R v An Immigration Adjudicator ex parte Secretary of State for the Home Department [1989] Imm AR 423, at 426, counsel argued that Parliament must be taken to have known that the "normal procedural rules" for immigration rules contain no obligation on the Secretary of State to disclose documents. The case cited involved a substantive asylum application. It involved different issues of fact and law. It seems to me that this first instance judgment tells us nothing about the problem before us. (4) Mr Pannick emphasized Parliament provided a very tight time table, with very short periods for the progress of an appeal. Subject to a special adjudicator's power to adjourn for good cause, this point is valid. For my part I would also accept that the reason was that delay may make it more difficult to return the asylum seeker to a third country. The suggestion is that a duty to disclose material facts is incompatible with such an expeditious procedure. That seems to be saying that Parliament was willing to entertain the erosion of fundamental rights in aid of expedition. I do not accept this proposition. Quite apart from the special adjudicator's statutory discretion to adjourn the proceedings, when necessary, his statutory power to order particulars, the delivery of documents and the summoning of witnesses is evidence of a legislative desire to safeguard fundamental rights of asylum seekers. Specifically, if the objective of the legislation is compatible with the giving of particulars to an applicant, why should it not be compatible with disclosing material facts? Mr Pannick laid great stress on this part of his argument. In my judgment he came nowhere near demonstrating a legislative intent to exclude a duty to disclose material facts. (5) A combination of paragraphs 5(6), 6(1) and 8(2) of the Asylum Appeals (Procedure) Rules 1993 show that the United Kingdom representative of the United Nations High Commissioner for Refugees (UNHCR) is entitled to be notified of an appeal, and may on his application be made a party. That is pursuant to this country's duty to facilitate UNHCR's duty of supervising the application of the 1951 Convention: see article 35. We were told that there was a flood of third country cases. We were told that UNHCR has one lawyer in the United Kingdom, and that UNHCR generally concerns itself with general issues and only occasionally gets involved in the United Kingdom in the merits of particular disputes. Mr Pannick sought comfort in this contextual scene. But what does his argument seek to prove? Presumably, if it has any relevance, it seeks to say that a legal duty to disclose material facts is excluded by UNHCR's role. That seems an astonishing proposition. It involves saying that the institutions of government of this country are relieved from a duty of procedural fairness by the presence in this country of a United Nations agency. I am confident that no such abdication of responsibility was contemplated by the 1951 Convention or by Parliament in enacting the 1993 legislation. (6) On behalf of the Secretary of State reference was also made to the valuable role of the Refugee Legal Centre, which is partly funded by the Home Office. But again I ask: What does this argument seek to prove? If a legal duty on the Home Office representative to disclose material facts otherwise exists, could the existence of the Refugee Legal Centre exclude such a duty? The answer is obviously no. The Refugee Legal Centre aims to give fair advice and assistance to refugees. It is no guarantor against procedural unfairness by the Home Office. (7) Mr Pannick argued that the duty imposed by Sedley J is difficult to apply in practice. Rhetorically, he asked, must the Secretary of State disclose to a special adjudicator every piece of information (including rumour or gossip) which might lead a special adjudicator to conclude that Spain is not a safe country, even though that information has been rejected by the Secretary of State as lacking credibility or reliability? This is what I would call "the sky will fall in" style of advocacy. Sedley J certainly did not envisage disclosure of rumour and gossip. What is proposed is a duty of fair disclosure of material facts available to the Asylum Division of the Home Office, which monitors such matters. Given that the Asylum Division should generally have no difficulty in identifying material tending to show that a third country is safe, in order to place it before a special adjudicator, I fail to see that the Asylum Division would be unable to cope with material to a contrary effect. But that brings me to the apparent suggestion that the Secretary of State's rejection of evidence that Spain is not a safe country deprives it of the quality of material facts. That submission is plainly based on a fundamental misconception. A special adjudicator is in law bound to conduct an independent and complete rehearing without deferring in any way to the Secretary of State's views. While I accept that irrelevant material need not be disclosed, I would hold that at the appeal stage it cannot be relevant, let alone determinative, what the Secretary of State thought about an admittedly relevant category of evidence. Contrary to the submissions on behalf of the Secretary of State, I would hold that the duty of disclosure envisaged by Sedley J does not in any way frustrate the aim of the legislation. 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 WLR 1221, at 1242D. 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. Conclusion It follows that I would allow the appeal in so far as Sedley J quashed the Secretary of State's certificates. I do so on the narrow ground set out earlier in this judgment. It further follows that for the reasons I have given, which are substantially similar to the reasons given by Sedley J, I would otherwise dismiss the appeal.

DISPOSITION:

Appeals allowed by a majority: leave to appeal to the House of Lords granted

SOLICITORS:

Treasury Solicitors: Param & Co London NW6