R v. Secretary of the State for the Home Department, Ex parte Gulay Canbolat

GULAY CANBOLAT
(Appellant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

30 April 1997 Court of Appeal: Lord Woolf MR., Evans, Schiemann LJJ Asylum-safe third country-Secretary of State had certified France to be a safe third country-whether entitled so to certify-reservations of some special adjudicators on effectiveness of safeguards in administrative procedures in France-whether Secretary of State only precluded from certifying a third country as safe if there were a reasonable degree of likelihood its Convention obligations would not be observed-whether he had to be satisfied the third country would observe its obligations-whether on the facts the Secretary of State was entitled to come to the conclusions he did-whether the 1996 Act had been brought into force in violation of EC law-whether Secretary of State had had obligation to consult other Member States before introducing the Act. Asylum and Immigration Appeals Act 1993 s. 6; Asylum and Immigration Act 1996 ss. 2, 3; HC 395 para. 345: EC Treaty art. 118: EC Commission Decision 88/384/EEC: United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art. 33. Appeal from the Divisional Court. The appellant was a citizen of Turkey. She arrived in the United Kingdom by train from Paris and claimed asylum. She was granted temporary admission. Subsequently the Secretary of State issued a certificate under section 2 of the 1996 Act and directions were given for her removal to France. In the months preceding the Secretary of State's decision, a number of adjudicators, dealing with without foundation appeals under the 1993 Act had concluded that France was not a safe third country: they had reached that conclusion because in some instances the procedures to deal with asylum claims in France had not, in their view, been properly carried out. The Divisional Court had concluded that the decision of the Secretary of State had not been irrational. On appeal to the Court of Appeal, counsel argued that the decision of the Secretary of State was not one to which he had been entitled to come. He criticised the approach adopted by the Divisional Court in accepting the proposition of counsel for the respondent that the Secretary of State had only to conclude that there was not a reasonable likelihood that France would return the appellant to Turkey otherwise than in accordance with the terms of the Convention. He reiterated the submission rejected by the Divisional Court that the Secretary of State had had an obligation under EC law to consult with other Member States before enacting the 1996 Act.

Held:

1. The correct test, as laid down in the Act, was that the Secretary of State had to be satisfied that France would not return the appellant to another country, contrary to the provisions of the Convention.

2. That however was subject to the implication that it was permissible to grant a certificate under the 1996 Act when, in the safe third country, there operated a system which would, if it operated as it usually did, provide the appellant with the required standard of protection.

3. The test was whether there was a real risk of refoulement contrary to the Convention discounting the unpredictability of human behaviour or remote possibilities of changes in administrative law or procedures.

4. On applying that test, the court could not conclude that the Secretary of State had erred.

5. There had been no obligation on the Secretary of State to consult with other Member States before introducing the 1996 Act.

M S Gill for the appellant D Pannick QC for the respondent

Cases referred to in the judgment:

R v Governor of Pentonville Prison ex parte Fernandez [1971] 1 WLR 987: [1971] 2 All ER 691. Bugdaycay and ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. Sivakumaran and ors v Secretary of State for the Home Department [1988] AC 958: [1988] Imm AR 147. R v Ministry of Defence ex parte Smith [1996] QB 517: [1996] 1 All ER 257. R v Secretary of State for the Home Department and anr ex parte Gulay Canbolat [1997] Imm AR 281.

THE MASTER OF THE ROLLS:

This is the judgment of the court. It relates to a decision of the Divisional Court (Lord Bingham LCJ and Moses J) of 14 February 1997. In the Divisional Court Lord Bingham LCJ gave the judgment of the court. He dismissed an application for judicial review by Gulay Canbolat a 24-year-old Turkish citizen of Kurdish origin. The application challenges: (a) the decision of the Secretary of State for the Home Department of I September 1996 authorising her removal from the United Kingdom to France and (b) the decision of the immigration officer refusing her leave to enter the United Kingdom. The applicant required leave to appeal and at the conclusion of the hearing before us having considered the able argument advanced on her behalf by Mr. Manjit Gill we granted her leave to appeal. On the appeal Mr. Gill has not canvassed all the issues which were before the Divisional Court. He has confined the argument to two issues namely:

(1)Was the Secretary of State's decision to issue a certificate under section 2(2) of the Asylum and Immigration Act 1996 ("the 1996 Act") one to which he was not entitled to come? The certificate was to the effect that the applicant should be returned immediately to France where her claim to asylum would be heard.

(2)Does the failure of the United Kingdom government to communicate and consult with the Commission of the European Community and with Member States as required by the Commission's decision of 8 June 1988 (88/384/EEC) issued pursuant to article 118 of the EC Treaty mean that the 1996 Act has been brought into force in violation of EC law?

Background

Before turning to consider those issues, it is only necessary to set out a brief outline of the applicant's personal circumstances. She arrived in this country on 31 August 1996 having travelled by Eurostar from Paris. On arrival she claimed political asylum. She was granted temporary leave to enter and has remained here ever since. A decision of the immigration officer as to her removal has been stayed pending the outcome of her application for judicial review. Because of the time which has elapsed since her arrival in this country, it is accepted on behalf of the Home Secretary that the applicant cannot now be removed from this country until her application for asylum is heard and determined on its merits. This means that her appeal is being pursued as a matter of principle and not because she will be affected personally by our decision. Despite this we considered it right to express our views on the issues which have been raised before us because the issues are of general importance and their resolution could assist decision-makers and courts faced with similar situations.

The relevant legislation

The issues arise because both this country and France are parties to the 1951 Geneva Convention (to be read with the New York Protocol of 1967) on the status of refugees. The critical provision of the Convention is article 33 which provides:

"Prohibition of Expulsion or Return ("Refoulement")

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

Effect is given to the Convention in the domestic law of this country by the Asylum and Immigration Appeals Act 993 (the "1993 Act"). Section 2 of that Act provides:

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

As indicated by its heading "Protection of claimants from deportation etc..." section 6 of the 1993 Act protects asylum seekers from deportation. The section reads:

"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

A person in the position of the appellant who is refused leave to enter had a right of appeal to a special adjudicator under section 8(1) of the 1993 Act. The ground of appeal that is specified in the section is "that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention". This ground of appeal was more restricted than that under the 1971 Act which it replaced. Paragraph 5 of schedule 2 to the 1993 Act provided:

"(1)Subject to sub-paragraph (2) below, this paragraph applies to an appeal by a person under subsection (1) ... of section 8 of this Act if the Secretary of State has certified 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

...

(3)For the purposes of this paragraph a claim is without foundation if (and only if):

(a)It does not raise any issue as to the United Kingdom's obligations under the Convention; or

(b)It is otherwise frivolous or vexatious".

Pending the determination of such an appeal, an applicant for asylum could not be removed from the United Kingdom, (Paragraphs 8 and 9 of schedule 2 of the 1993 Act.) Further restrictions on the rights of appeal were introduced by the Asylum and Immigration Act 1996 ("the 1996 Act"). The objectives of that Act include the strengthening of the procedures for dealing with claims for asylum in order to expedite the determination of those claims and appeals from them. Among those asylum seekers to which the 1996 Act applies are asylum seekers who have arrived in this country from a "safe country". That is a country other than a country where the asylum seeker fears he will be persecuted. Where that is the situation, it is accepted that it would not contravene the Convention for this country to return the asylum seeker to the safe country from which the asylum seeker had come without having to investigate the merits of the claim for asylum. This however is subject to an important proviso and that is that the safe country is not one where the asylum seeker would be persecuted and is not one from which he would be returned to the country where he alleges he would be persecuted without the merits of his claim for asylum being properly investigated or in breach of article 33 of the Convention. The decisions of the Secretary of State and of the immigration officer which the appellant seeks to challenge by way of judicial review are decisions which were intended to achieve her removal from this country to what was said to be a safe country namely France. The 1996 Act came into force on 1 September 1996 which was the same day the Secretary of State issued the certificate. The following day the immigration officer reached his decision. The provisions of the 1996 Act which applied to the appellant are sections 2 and 3. Section 2 provides:

"(1)Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if-

(a)the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled;

(b)the certificate has not been set aside on an appeal under section 3 below; and

(c)except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.

(2)The conditions are-

(a)that the person is not a national or citizen of the country or territory to which he is being sent;

(b)that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(c)that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.

(3)This subsection applies to any country or territory which is or forms part of a Member State, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument.

...

(7)In this section ‘claim for asylum' and ‘the Convention' have the same meaning as in the 1993 Act."

The reference in section 2(3) to a "Member State" refers to Member States of the European Union and therefore applies to France. Section 3 of the 1996 Act, so far as relevant states:

"(1)Where a certificate has been issued under section 2(1) above in respect of any person:-

(a)that person may appeal against the certificate to a special adjudicator on the ground that any of the conditions mentioned in section 2(2) above was not fulfilled when the certificate was issued, or has since ceased to be fulfilled; but

(2)A person who has been, or is to be, sent to a country or territory to which section 2(3) above applies shall not be entitled to bring or pursue an appeal under this section so long as he is in the United Kingdom."

The restriction on the right to appeal contained in section 3(2) can be one of substance. If in fact the country to which a prospective appellant has been or is to be sent is a country which fully protects his Convention rights, then the need to leave the United Kingdom prior to appealing is not significant as in these circumstances there is little purpose in appealing. If on the other hand that country does not protect his rights, then the value of the right of appeal exercisable only from abroad in practice is likely to be highly speculative since such a country could well remove him from their territory before he has time to exercise his right of appeal to a special adjudicator in this country. It is because of this restriction on the right of appeal that it is appropriate to challenge by way of judicial review the grant of a certificate of the Secretary of State without first exhausting the process of appeal under section 3. If an asylum seeker alleges that the "safe country" would not recognise his rights under the Convention, it would clearly be wrong to allow him to be removed from this country without his having the opportunity to test the legality of what was occurring if that might not be possible from the third country and he has an arguable case for contending that his removal was unlawful. The only other provision to which it is necessary to make reference is paragraph 345 of the Immigration Rules (HC 395) as amended. Paragraph 345 reads:

"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:

(i)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

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

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

It is now possible to turn to the issues.

The first issue

The certificate which the Secretary of State gave the appellant on I September 1996 was so far as relevant in these terms.

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

However, Turkey is not the only country to which you can be removed. You arrived in the United Kingdom on 31 August 1996 aboard the EPS 9039 service from Paris, France. You were encountered aboard the Eurostar service and claimed asylum upon arrival at Waterloo International. You are, under paragraph 8(1)© of Schedule 2 of the Immigration Act 1971, returnable to France which is a signatory of the 1951 United Nations Convention relating to the Status of Refugees.

Paragraph 345 of HC 395 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.

In line with the United Kingdom's readmission agreement with France, the French authorities have been informed of your arrival in the United Kingdom. On the basis of his knowledge of the immigration policies and practices of France, and on previous experiences in returning passengers to France, the Secretary of State is of the opinion that, in the circumstances of your particular case, the authorities there would comply with their obligations under the Convention. He hereby certifies, therefore, that the conditions mentioned in Section 2(3) of the Asylum and Immigration Act 1996 are fulfilled; namely that:

•you are not a national or citizen of France,

•your life and liberty would not be threatened in France by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and that

•the government of France would not send you to another country or territory otherwise than in accordance with the Convention."

A certificate in these terms is one which it is difficult for an applicant on judicial review to challenge. The reference to Member States of the European Union in section 3(2) of the 1996 Act indicates that Parliament anticipated that the Secretary of State would be likely to regard such countries as "safe countries". However prior to the 1996 Act removing their jurisdiction, special adjudicators when determining appeals indicated that they were not satisfied that France could be treated as a safe country. The adjudicators were not concerned about French substantive law. This does protect asylum seekers in accordance with the Convention. Their concern was as to the danger that when an asylum seeker was returned to France the asylum seeker would not be given an opportunity to have his position determined in accordance with French law as the Convention required prior to his being deported from France. Special adjudicators in the course of their work acquire considerable experience of what happens in practice in different countries and as special adjudicators had come to this conclusion when the 1996 Act came into force, the Secretary of State was under an obligation to satisfy himself that either these decisions of special adjudicators were in his opinion wrong or that since they reached their decisions the position had changed for the better in France. Before considering further the material which was available to the Secretary of State when he came to his decision (which is the material upon which the validity of his decision has to be judged) it is desirable to clarify the respective roles of the Secretary of State and the courts now that the 1996 Act is in force. It is convenient to start with what an applicant for asylum would be required to establish if the Secretary of State was considering the merits of an application for asylum. Here for present purposes it is not necessary to do more than refer to the speech of Lord Keith of Kinkel in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958 at 994. Lord Keith of Kinkel said:

"In my opinion the requirement that an applicant's fear of persecution should be well founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country."

Basing himself upon this statement of Lord Keith, Mr. Pannick QC on behalf of the Secretary of State submits that the Secretary of State is entitled to ask himself whether, in his opinion, there is a reasonable degree of likelihood that France would send the appellant to Turkey otherwise than in accordance with the Convention. He submits that the Secretary of State does not need to satisfy himself that there is no risk that France would return the appellant to Turkey in breach of the Convention: in any system, however well-devised and supervised, errors may be made. The Secretary of State must be entitled to conclude that section 2(2)© of the 1996 Act is satisfied notwithstanding there may be isolated instances among the thousands of asylum cases considered in France, where the correct procedures are not followed. It is therefore sufficient if he is satisfied (and reasonably so) that there is not a reasonable degree of likelihood that France would send the appellant to Turkey otherwise than in accordance with the Convention. The Divisional Court appears to have accepted this submission of Mr. Pannick, which is recorded in their judgment in these terms:

"It was also submitted that the Secretary of State, when considering whether there was sufficient substantial danger that a third country would fail to observe Article 33 of the Convention, or whether there was a reasonable degree of likelihood that it would do so, was entitled to consider a third country to be safe even if there were evidence of occasions on which it had failed to comply with its Convention obligations. This is essentially a matter for the judgment of the Secretary of State. He may regard established instances of non-compliance as symptomatic of a general malaise, and if he does, he may properly decline to regard a third country as safe, He may, on the other hand, regard such instances as aberrations of the kind to which even the best regulated system is on occasion prone. It is for him to make an informed and conscientious judgment."

Mr. Gill on behalf of the applicant criticises this approach of the Divisional Court because of its reference to "a reasonable degree of likelihood" and because he contends it is not necessary for there to be a "general malaise" before it is inappropriate to regard a country as safe. The second criticism does not, in our judgment, make sufficient allowance for the fact that the Divisional Court was in the passages he criticises giving examples of two different situations. One where it was clear that the Secretary of State could not regard the country as safe and one where it would be equally clear that he was entitled to regard it as safe. We do not understand the Divisional Court to be ignoring the grey area between the two situations which would require particular difficult decisions to be reached by the Secretary of State. However in our judgment this first criticism does have substance. We do not accept Mr. Pannick's adoption of a reasonable degree of likelihood test. This submission involves a lower threshold than that laid down by the Act. Section 2 requires the Secretary of State to certify "the conditions mentioned in sub-section (2) below are fulfilled". The relevant condition which he had to certify was fulfilled which was in issue was "that the government of [France] would not send [her] to another country or territory other than in accordance with the Convention". The language of the condition is unqualified. This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by section 6 of the 1993 Act. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will if it operates as it usually does provide the required standard of protection for the asylum seeker. No country can provide a system which is a hundred per cent effective. There are going to be aberrations. All that can be expected and therefore all that Parliament could have intended should be in place prior to the grant of a certificate was a system which can be expected not to contravene the Convention. What is required is that there should be "no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention". The unpredictability of human behaviour or the remote possibility of changes in administrative law or procedures which there is no reason to anticipate would not be a real risk. Mr. Pannic submitted that it would be absurd to have one standard to e applied w ere the Convention was to be applied in this country and another test where the Convention was to be applied in another country. However we do not agree. In Sivakumaran the "reasonable degree of likelihood" test was laid down as an objective standard which an applicant for asylum status had to demonstrate in order to obtain protection. If the complaint as to a safe country is as to the test it applies in determining whether there is a breach of the Convention, no criticism could properly be made of that country if it applies the same test as we apply in determining whether the asylum seeker has the necessary "well-founded fear". However where the criticism of the safe country is that the procedures are such that in practice there is a real risk that the applicant will never have an opportunity to demonstrate that there is a reasonable degree of likelihood that he will be persecuted if he is returned to the supposedly safe country then that is a different matter. The "reasonable degree of likelihood" test is laid down so as not to place too heavy an obligation on the asylum seeker. The asylum seeker has to comply with an objective test but one which is not absolute. We do not see any reason for applying the same standard where what is at issue is whether an asylum seeker should be entitled to exercise his rights of appeal in this country or from a third country to which he is to be removed. It might be suggested that the difference between the test accepted by the Divisional Court and that which we are proposing of a real risk is a distinction without a practical difference. If that be so then the point which we are emphasising will not be of a great significance. However while we recognise that in the majority of cases both tests may well lead to the same result this does not justify applying the wrong standard in the minority of cases where it will lead to the wrong result. We regard it as undesirable to apply a test which was intended to enable an asylum seeker to establish his well-founded fear to the very different function which the Secretary of State is performing. Here it is relevant to remember that the decision in Sivakumaran was influenced by the earlier decision of the House of Lords in R v Governor of Pentonville Prison ex parte Fernandez (1971) 1 WLR 987. In that case the house had to construe section 4(1)© of the Fugitive Offenders Act 1967. Under that Act a person was not to be returned if it appears "that he might if returned be prejudiced at his trial etc". In Sivakumaran Lord Keith referred to the opinion of Lord Diplock in the earlier case where Lord Diplock states:

"My lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he returns. A lesser degree of likelihood is, in my view, sufficient: and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. ‘A reasonable chance' ‘substantial grounds for thinking' ‘a serious possibility'-I I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c)".

Lord Keith said of this statement of Lord Diplock "appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well founded." (995 B/C) The Divisional Court referred to the speech of Lord Bridge in R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514. The approach of Lord Bridge in that case is perfectly appropriate as indicating the standard of scrutiny which the courts should adopt in relation to asylum issues. Subject to the normal limitations which restrict interference by a court on judicial review he said "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". (at p 539 F/G). Lord Bridge however went on to deal with the removal of asylum seekers to third countries and in relation to what he said as to this, it must be remembered he was not addressing his remarks to the new situation created by the 1996 Act. It is not suggested in this case that the Secretary of State actually applied the wrong test as a matter of law. It is therefore not necessary to say any more about the submission of Mr. Pannick which we consider was wrongly accepted by the Divisional Court. The identification of the right test is however necessary when considering whether the decision of the Secretary of State was one to which he was entitled to come on the material which was before him. In R v Ministry of Defence ex parte Smith [1996] QB 517 at 554 the then Master of the Rolls accepted as "an accurate distillation of the principles laid down by the authorities" a submission of Mr. Parmick which is in these terms:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference of human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above".

When considering issues in relation to asylum seekers, the court is necessarily concerned with issues as to human rights and we would regard Mr. Parmick as accurately in that passage indicating the correct approach to be applied here. It is also important to bear in mind that it is for the Secretary of State to evaluate the material. If the Secretary of State could properly come to the decision which he did on that material then this court cannot interfere. He is the person who has to form the opinion. However in order to form the opinion, it is necessary for him to take such steps as are reasonable in the circumstances to acquaint himself with the relevant facts. Adopting this approach, we turn to consider material which was or should have been available to the Secretary of State. In doing so we bear in mind the submission of Mr. Gill as to the inequality of the position of the asylum seeker as compared with that of the Secretary of State. It is extraordinarily difficult for someone in the position of the applicant to show the Secretary of State could not properly form the opinion that he states that he did. Indeed it would be impossible for the asylum seeker even to attempt to do so were it not for the commendable efforts which have been made by the Refugee Legal Centre to protect the position of asylum seekers. Despite very limited resources, they have accumulated significant material. Mr. Gill however, with some justification, points out it would not be unduly burdensome on the Secretary of State to take more steps than he does at present to monitor what happens to asylum seekers who are returned to France. As against this the evidence makes it clear that the Secretary of State did cause enquiries to be made in France and in relation to those enquiries we have well in mind that the Secretary of State is dependent upon receiving the co-operation of the French authorities. The Secretary of State based his opinion primarily upon:

(1)France's commitment to a number of international conventions and agreements applying to asylum seekers;

(2)An assessment of French laws and procedures;

(3)Information from M Faugere, the Director of Direction des Libertis Publiques des Affaires Juridiques ("DLPAJ") and from Mr. Kennedy the British liaison officer in Direction Centrale du Contrble de l'Immigration et de la Lutte Contre l'Emploi des Clandestins ("DICCILEC") as to the implementation of French laws and procedures in practice;

(4)A lack of evidence contradicting the Secretary of State's opinion.

There is no doubt of France's adherence to the international conventions and agreements and Mr. Gill correctly accepts this as a proper starting point. As to French domestic law, Mr. Gill makes no complaint. If the law properly operates, then an application for asylum by an applicant returned by this country to France should be appropriately considered by the Office Français de Protection Des Réfugiéss et Apatrides ("OFPRA:'). If OFPRA becomes properly seized of an application then it is accepted that there is no real risk of a contravention of the Convention. What is criticised is the practice adopted by French officials within the Préfecture. The effect of the complaints is accurately summarised by the Divisional Court as being "that there has been a persistent history of officials ignoring requests for asylum and seeking to remove complainants on the basis of a failure to claim asylum when the applicant was previously in France". The material which indicates the nature of the problem is set out in some detail in the judgment of the Divisional Court, and bearing in mind that the actual decision of the Secretary of State in this case no longer has any significance for the appellant, it is not necessary to repeat it. However it is important to draw attention to the fact that since April 1996 special adjudicators have with two exceptions allowed appeals or referred cases back to the Secretary of State in every case where the status of France as a safe third country was in issue. The other matter to which attention should be drawn is what happened to Mr. Ali Iqbal. After lqbal had travelled via France to London the Secretary of State certified that his case was without foundation on the basis that France was a safe third country. When he returned to France after his appeal had been dismissed officials at the Paris Préfecture acted contrary to proper procedures so that his claim for asylum was ignored. Orders for removal were served, apparently in the absence of an interpreter, and attempts were made forcibly to place him in an aeroplane. The only reason that he was not removed was that the captain of the plane refused to take responsibility for him so that his case received press publicity and he was subsequently allowed to claim asylum in France. This was obviously a serious departure from proper standards but it has to be seen in the context of France having to deal with more than 20,000 asylum applications in each of the last 10 years. Furthermore account has to be taken of the fact that the proportion of successful applications is higher in France than in any other Member State. Like the Divisional Court we have carefully considered all the material which has been placed before us. We understand on the basis of that material the concerns of the special adjudicators. However we would emphasise the difference between the decisions of the special adjudicators and the responsibilities of this court. The special adjudicators on an appeal consider the material which is before them and make their own judgment as to the merits. The court's role is limited to that of review. Approaching the question as one of review, we cannot say that the Secretary of State was not entitled to come to the opinion that he did. We say this notwithstanding the critical comments made of the position in France in a report by a fact-finding mission on behalf of the International Federation for Human Rights. The evidence on behalf of the Secretary of State does not specifically deal with this report. We do not know what weight the Secretary of State attaches to it. We would have been assisted by knowing his approach to this material. However it may well be that when he reached his decision, there was no more than a summary in English available to him. The position is not clear. We would have thought however this is material to which he should certainly have had regard if it was available when he granted a certificate and which we would expect him to comment on in future. On the first issue we would therefore not come to a different decision from that of the Divisional Court. In his argument, Mr. Gill also sought to pray in aid the lack of any right of appeal in France. However this argument does not assist his case because the problem was not as to the quality of the decision which OFPRA would provide but obtaining a decision from that body. In any event we take the same view as the Divisional Court that the Geneva Convention does not require contracting states to provide a suspensive right of appeal against a decision to remove an asylum seeker.

The second issue

Mr. Gill relies on the Commission's decision of 8 June 1988 (88/384/EEC). This is a new point which we considered it right to allow Mr. Gill to develop. However having allowed him to do so, we summarily reject it. The Commission's decision does not concern issues of asylum law and we would not apply it to the different situation now under consideration. Further, if it did apply we doubt that it is an appropriate foundation on which to base complaint by an individual. We would regard it as being confined in its application to the European Commission and the Member States to whom it relates.

Conclusion

As the decision of the Secretary of State and the immigration officer no longer have any disadvantageous consequences for the appellant she would not in any event have been entitled to any relief and we do not allow this appeal. However the appeal has given an opportunity for the law to be clarified on important issues.

DISPOSITION

Appeal dismissed

Solicitors:

Bluett & Co, London N9; Treasury Solicitor