R v. Secretary of State for the Home Department, Ex parte Mehari; Same v. Same, Ex parte Doreh; Same v. Same, Ex parte Hersi; Same v. Same, Ex parte Celik; Same v. Same, Ex parte Augusto

QUEEN'S BENCH DIVISION

 

[1994] QB 474, [1994] 2 All ER 494, [1994] 2 WLR 349, [1994] Imm AR 151

Hearing Date: 28, 29 September, 4, 8 October 1993

8 October 1993

Index Terms:

Immigration -- Refusal of entry -- Refugee, intention to stay as -- Application for asylum refused without consideration of substantive merits -- Applicant arriving from safe third country -- Claim that removal in breach of international obligations -- Secretary of State issuing certificate that applicant's claim "without foundation" -- Subordinate legislation providing criteria for removal to safe third country -- Whether valid -- Whether Secretary of State entitled to remove without consideration of merits of claim -- Asylum and Immigration Appeals Act 1993 (c 23), Sch 2, para 5(1)(3)(a)(6) -- Statement of Changes in Immigration Rules (1993) (HC 725), para 180K

Held:

The five applicants were foreign nationals who feared persecution in their countries of origin and had each travelled via a third country to the United Kingdom where they sought asylum as refugees. The Secretary of State refused to grant them leave to enter and decided, pursuant to paragraph 180K of the Statement of Changes in Immigration Rules (1993) (HC 725), to remove them to what he regarded as the safe third countries from which they had arrived without consideration of the merits of their claims that they had a well founded fear of persecution. In addition the Secretary of State in each case issued a certificate, under paragraph 5(3) of Schedule 2 to the Asylum and Immigration Appeals Act 1993, that the applicant's claim that his removal from the United Kingdom would breach the United Kingdom's obligations under the Geneva Convention relating to the Status of Refugees (1951) and its Protocol (1967) (Cmd 9171 and Cmnd 3906), which by section 2 of the Act of 1993 he was obliged to abide by, was without foundation. The applicants appealed to special adjudicators that the Secretary of State failed to consider the merits of their asylum claims but instead proposed to remove the applicants to safe third countries. The adjudicators dismissed the appeals. On applications by all five applicants for orders of certiorari to quash the decisions of the adjudicators:- Held (1) that, in order for the Secretary of State to issue a certificate that an applicant's claim for asylum was without foundation because it did not raise any issue as to the United Kingdom's obligations under the Convention, under paragraph 5(3)(a), he was obliged to form a view on the information known to him that the applicant could be removed to a third country which was safe within the terms of paragraph 180K of HC 175; that paragraph 5(3)(a) properly construed applied only to cases where an applicant could be so removed to a third country, since otherwise it was necessary for the Secretary of State to decide the claim on its factual merits; and that nothing in paragraph 180K rendered it ultra vires section 2 of the Act of 1993 or required further stipulations to be written into it so that the United Kingdom might fulfil its obligations under the Convention. (2) That a special adjudicator hearing an appeal against a certificate issued under paragraph 5(3)(a) had first to determine independently whether he agreed with the Secretary of State's decision; that he was entitled to agree with a certificate and dismiss the appeal, if on the material before him he concluded that the Secretary of State had demonstrated that the applicant might properly be removed to a third country under paragraph 180K; that if he concluded that removal was not justified, the adjudicator could either allow the appeal or, as was more likely in practice, refer the case to the Secretary of State for reconsideration on its merits under paragraph 5(6) of Schedule 2; but that if the adjudicator was doubtful whether removal was justified, he should refer the case to the Secretary of State for reconsideration indicating his doubts. (3) Allowing the applications of the first and fifth applicants and dismissing the other applications, that in the case of the first applicant the adjudicator had wrongly placed the onus on the applicant to establish that his removal would breach the United Kingdom's Convention obligations, and in the case of the fifth applicant the adjudicator had erred in taking irrelevant evidence into account in deciding whether the applicant could be safely returned to the third country; but that in the remaining cases the adjudicator had been entitled to agree with the merits of the certificates and dismiss the appeals.

Cases referred to in the Judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, CA Bouzeid v Secretary of State for the Home Department [1991] Imm AR 204, CA Pepper v Hart [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42, HL(E) Reg v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514; [1987] 2 WLR 606; [1987] 1 All ER 940, HL(E) Reg v Secretary of State for the Home Department, Ex parte Hialudeen [1993] Imm AR 250 Reg v Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254; [1990] 3 WLR 797; [1990] 3 All ER 393, HL(E)

Cases cited in the Judgment:

No additional cases were cited in argument. The following additional cases, although not cited, were referred to in the skeleton arguments: Abdulla v Secretary of State for the Home Department [1992] Imm AR 438, CA Browne v Dunn (1893) 6 R 67, HL(E) Chief Adjudication Officer v Foster [1993] AC 754; [1993] 2 WLR 292; [1993] 1 All ER 705, HL(E) Conteh v Secretary of State for the Home Department [1992] Imm AR 594, CA Dursun v Secretary of State for the Home Department [1993] Imm AR 169, CA Karali v Secretary of State for the Home Department [1991] Imm AR 199, CA Reg v Secretary of State for the Home Department, Ex parte Doody [1993] 3 WLR 154; [1993] 3 All ER 92, HL(E) Reg v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958; [1988] 2 WLR 92; [1988] 1 All ER 193, HL(E) Reg v Secretary of State for the Home Department, Ex parte Yassine [1990] Imm AR 354. Singh (Balbir) v Secretary of State for the Home Department [1991] Imm AR 426, CA Thevarajah v Secretary of State for the Home Department [1991] Imm AR 371, CA

Introduction:

APPLICATIONS for judicial review. REG V SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte MEHARI The applicant, Senay Mehari, a minor, born on 1 December 1975 and a citizen of Ethiopia who arrived in the United Kingdom on 11 August 1993 from Italy where he had been since the end of 1992, applying by his next friend, Deborah Winterbourne, applied for judicial review by way of orders of certiorari to quash (1) the decision of the Secretary of State on 16 August to refuse him leave to enter the United Kingdom, (2) the decision of the special adjudicator on 27 August dismissing his appeal against the Secretary of State's refusal and (3) the decision of the Secretary of State on 14 September maintaining his decision to refuse entry and to remove the applicant to Italy. The grounds of the application were, inter alia, (1) that the special adjudicator misdirected herself in law in failing to consider whether the applicant's claim for asylum was without foundation within the limited meaning of paragraph 5(3) of Schedule 2; (2) that the special adjudicator misdirected herself in law in stating that the burden was on the applicant to prove that he would not be readmitted to Italy if removed from the United Kingdom, since, in certifying that the applicant's claim was without foundation, the Secretary of State had the burden to prove that the case did not raise any issue as to the United Kingdom's obligations under the Convention; (3) that paragraph 180K of HC 725, in so far as it established a practice of return to third countries without consultation with the authorities of such countries, was ultra vires section 2 of the Act of 1993; (4) that the Secretary of State's consideration of the applicant's claim failed to take into account the fact that he was a minor; (5) that the special adjudicator gave no reason for rejecting the applicant's evidence that Italy was not a safe third country, in particular the uncontroverted evidence of Amnesty International of Italy's failure to observe the obligations of the Convention; and (6) that the Secretary of State's proposed removal of an unaccompanied minor without first ensuring adequate arrangements for his reception in Italy was irrational and was in direct violation of assurances given by the minister in Parliament on 3 December 1992 that such reception arrangements would be made. REG v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte DOREH The applicant, Mohamed Ahmed Doreh, a citizen of Somalia who arrived in the United Kingdom on 10 August 1993 from Italy where he had been since 6 August, applied for judicial review by way of orders, inter alia, for (1) a declaration that paragraphs 180D and 180K of HC 725 breached the United Kingdom's obligations under the Convention and were ultra vires, and (2) certiorari to quash the decisions of (i) the Secretary of State on 22 August refusing the applicant leave to enter the United Kingdom as a refugee and his decision to certify that the application was without foundation, (ii) the decision of the special adjudicator on 2 September refusing the applicant's appeal and (iii) the Secretary of State's decision on 3 September to issue directions to remove the applicant from the United Kingdom on 4 September. The grounds of the application were, inter alia, (1) that the Secretary of State's failure to consider the applicant's claim for asylum breached the United Kingdom's obligations under the Convention, and he erred in law in determining that the claim was without foundation; (2) that the special adjudicator in upholding the decision to refuse the application for asylum failed to consider the applicant's individual circumstances and therefore his appeal on the merits; (3) that the special adjudicator therefore failed to satisfy himself on the evidence whether Italy would accept the applicant and (4) that therefore the Secretary of State's decision, and the special adjudicator's upholding of it, that the claim was without foundation was unreasonable. REG V SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte HERSI The applicant, Ali Abdi Hersi, a citizen of Somalia who arrived in the United Kingdom on 14 August 1993 from Germany, applied for judicial review by way of, inter alia, an order of certiorari to quash the decision of a special adjudicator on 31 August dismissing the applicant's appeal against the decision of the Secretary of State on 15 August to refuse the applicant entry to the United Kingdom for consideration of his claim for asylum, since the Secretary of State's opinion was that he could be returned to Germany and he certified that the claim was without foundation. The grounds for the application were, inter alia, that the special adjudicator failed (1) to consider adequately or at all whether the claim was without foundation, as defined in paragraph 5(3) of Schedule 2, and (2) to allow the applicant to be legally represented or to have the services of an interpreter, which was a breach of natural justice particularly in view of the limit of two days for an applicant to make an appeal under rule 5(2) of the Asylum Appeals (Procedure) Rules 1993. REG v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte CELIK The applicant, Fuat Celik, a citizen of Turkey who arrived in the United Kingdom on 21 July 1993 by sea from Holland where he had spent about one and a half hours after travelling overland from Turkey, applied for judicial review by way of, inter alia, an order of certiorari to quash the decision of the special adjudicator on 7 September dismissing his appeal under section 8(4) of the Act of 1993 against the Secretary of State's refusal on 19 August to consider the claim for asylum because the applicant could be removed to Holland, and his certificate that the claim that his removal from the United Kingdom would breach the Convention was without foundation. The grounds of the application were, inter alia, (1) that the special adjudicator erred in law in finding that the Secretary of State lawfully certified that the applicant's claim was without foundation because the certificate was undated and there was no evidence to show that the certificate was made by a person to whom the Secretary of State's power of certification could properly be delegated in the sense of a responsible senior officer; (2) that the practice of third country removals set out in paragraph 180K of HC 725 was incompatible with the Convention and, since the Secretary of State failed to obtain any guarantee that the Dutch authorities would examine the applicant's asylum claim, the special adjudicator should have declared the paragraph to be such; (3) that the special adjudicator erred in finding that the Secretary of State had established to the appropriate standard of proof that the applicant was in fact returnable to Holland on the grounds that the applicant had the opportunity to seek asylum there or, alternatively, that there was other clear evidence that he would be admitted there, and; (4) that in all the circumstances the special adjudicator's decision involved an error of law and was unfair and unreasonable. REG v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte AUGUSTO The applicant, Massampo Kuti Augusto, a citizen of Angola who arrived in the United Kingdom on 8 August 1993 from France, applied for judicial review by way of an order of certiorari to quash the decision of the special adjudicator on 8 September dismissing the applicant's appeal against the Secretary of State's decision on 12 August to refuse his application for asylum on the basis that he was returnable to France and that the application was without foundation because it did not raise any issue as to the United Kingdom's obligations under the Convention. The grounds for the application were, inter alia, (1) that the special adjudicator misdirected himself in law by stating that the Secretary of State was obliged to establish on the balance of probabilities on the evidence before him that by expelling the applicant the United Kingdom was not in breach of the Convention, whereas within the meaning of paragraph 5(3) of Schedule 2 the question was whether any issue was raised by the application; and (2) that the special adjudicator's subjective views of the applicant's reasons for not claiming asylum in France were irrelevant to the question whether France would comply with its Convention obligations. The facts are stated in the judgment.

Counsel:

Nicholas Blake and James Gillespie for the applicant Mehari; Rambert de Mello for the applicant Doreh; David Abbott for the applicant Hersi; Andrew Nicol for the applicant Celik; Richard Scannell for the applicant Augusto; David Pannick QC and Robert Jay for the Secretary of State.

Judgment-READ:

Cur adv vult 8 October. PANEL: Laws J

Judgment One:

LAWS J, (read the following judgment): All these applications seek judicial review of decisions of special adjudicators given under the Asylum and Immigration Appeals Act 1993, which came into effect on 26 July 1993. Each applicant is an asylum-seeker who appealed to the special adjudicator under section 8 of the Act of 1993 in effect against the Secretary of State's decision not to consider the merits of his claim that he had a well-founded fear of persecution, but rather to remove him to what the Secretary of State regards as what I may call a safe third country, being the country from which he had directly travelled to the United Kingdom. In all but one of the cases the appeal was brought under section 8(1) against the Secretary of State's refusal of leave to enter. In the case of Celik the appeal was brought under section 8(4) against removal directions. In each case the Secretary of State also issued a certificate under paragraph 5 of Schedule 2 to the Act of 1993 to the effect that the applicant's claim that his removal as proposed by the Secretary of State would contravene the United Kingdom's obligation under the Geneva Convention relating to the Status of Refugees 1951 (Cmd 9171) and Protocol (1967) relating to the Status of Refugees (Cmd 3906) ("the Convention") was without foundation. All the applications raise a common question of no little importance as to the true construction of paragraph 5 of Schedule 2. Individually they raise other points. [His Lordship set out the facts, in chronological order, in the respective cases, and continued:] I may now turn to the Act of 1993. Section 1, inter alia, defines "the Convention" as meaning the Geneva Convention relating to the Status of Refugees and its Protocol. Section 2 provides: "Nothing in the immigration rules (within the meaning of [the Immigration Act 1971]) shall lay down any practice which would be contrary to the Convention." Section 8 provides in part as follows: "(1) 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 . . . (4) Where directions are given . . . for a person's removal from the United Kingdom, the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention." It is worth bearing in mind that before the Act of 1993 came into force, subject to certain limited exceptions a person refused leave to enter the United Kingdom could not appeal against the refusal unless he left this country first; that was the effect of section 13 of the Act of 1971. The right of appeal conferred by section 8(1) of the Act of 1993 is of course exercisable within the United Kingdom, and so for the first time provides what many would regard as effective access in a port refusal case to the statutory appellate authorities for a person who has made a claim for political asylum. Section 8(6) gives effect to Schedule 2 to the Act. The critical part of Schedule 2 for present purposes is paragraph 5, most of which I must set out, but it is important to see that paragraph 4, which is made subject to paragraph 5, applies to section 8 appeals certain of the provisions of the Immigration Act 1971 dealing with the appellate jurisdiction and procedure of adjudicators and the Immigration Appeal Tribunal, including section 19, dealing with the adjudicators' functions, section 20, conferring a right of appeal from adjudicator to tribunal and section 22, which confers on the Secretary of State the power to make rules of procedure by statutory instrument. Paragraph 5 of Schedule 2 to the Act of 1993 in part provides: "(1) . . . this paragraph applies to an appeal by a person under subsection (1) . . . or (4) 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. (4) Rules of procedure under section 22 of the 1971 Act may make special provision 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." New rules of procedure for the appellate authorities have been made. These are the Asylum Appeals (Procedure) Rules 1993 (SI 1993 No 1661), which came into force on the same day as the new Act, 26 July 1993. They apply only to section 8 appeals. It is quite apparent from the provisions which I was shown that a prime purpose of the Rules of 1993 is to set in place a very speedy regime indeed, and a yet speedier one where the Secretary of State has certified under paragraph 5 of Schedule 2 that the claim is without foundation. Thus, the time limit for giving notice of appeal is only two days in any section 8(1) case, in any case where the Secretary of State has certified under paragraph 5 of Schedule 2, and in any case where the decision in question has been personally served on the appellant (rule 5(2) of the Rules of 1993); in other cases it is 10 days (rule 5(1)); and the special adjudicator is to give notice of the date, time, and place fixed for the hearing within five days after receiving the notice of appeal, but only three days in a case under paragraph 5 of Schedule 2: rule 6. There is no provision for extending these time limits. By rule 9 the special adjudicator is to determine an appeal not later than 42 days after receiving notice of appeal; but only seven days in a case under paragraph 5 of Schedule 2. These latter time limits are however extendable under rule 31. Other provisions exemplifying the theme of expedition include rule 11(4), by which in a case where the special adjudicator agrees under paragraph 5(5) of Schedule 2 with the Secretary of State's certificate, he is to pronounce his determination and reasons at the conclusion of the hearing. The balance of rule 11 imposes constraints on the time he may take with his decision in other cases. From these materials it is at once apparent that the certification procedure is of critical significance: it conditions the time-limits, and, what is I think of much greater importance, its application determines the availability or otherwise of a further appeal to the appeal tribunal. These applications require me to construe paragraph 5 of Schedule 2, so as to ascertain the legal effects of the certification procedure as it works in practice. In a case where the Secretary of State gives a certificate, the first task for the special adjudicator is to decide whether he agrees with it or not under paragraph 5(5) or (6) of Schedule 2. If he does agree, as in effect he did in each of these cases, that is of course the end of the appeal; the applicant has no further relevant legal rights save that he may apply for leave to move for judicial review against the adjudicator's decision. Where the adjudicator disagrees with the certificate, he must then proceed as a separate exercise to decide whether to allow or dismiss the appeal, or refer the case back to the Secretary of State under paragraph 5(6). It is also clear, as Mr Pannick accepts, that in deciding whether to agree or disagree with the certificate the adjudicator does not apply the public law Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), or anything akin to it, but must consider for himself whether the claim is indeed "without foundation" as that term is defined in paragraph 5(3) of Schedule 2. The primary question to be resolved in these proceedings is the meaning of that definition: more particularly, the words in the first part at sub- paragraph (3)(a): "it [that is, the claim] does not raise any issue as to the United Kingdom's obligations under the Convention." The arguments of the applicants before me did not all take the same position on this question, and Mr Pannick for the Secretary of State proposed two alternative constructions of paragraph 5(3). Mr de Mello, for the applicant Doreh, submitted that an issue is raised within the meaning of paragraph 5(3)(a) upon an applicant merely asserting that he is a refugee. I can say at once that this putative construction is, in my judgment, obviously wrong. By definition, every applicant under section 8 will assert that he is a refugee. If such an assertion is sufficient to negative the Secretary of State's certificate, there will be no case under paragraph 5(3)(a) in which such a certificate could lawfully be upheld by the adjudicator. Paragraph 5(3)(a) becomes a dead letter. Mr Pannick's first proposed construction, though not his preferred case, was that an issue is only raised within the meaning of paragraph 5(3)(a) if the applicant has an arguable case that his removal would be contrary to the United Kingdom's obligations under the Convention. On this approach, the certificate will only be proper, and the adjudicator will only agree with it if the case, on the facts, is akin to one in which leave to apply for judicial review would be refused in the public law court. The analogy is plainly not exact, if only because by the time the case reaches the adjudicator it falls by definition to be determined on an inter partes basis, and it is for the Secretary of State to satisfy the adjudicator that his certificate is good, rather than for the applicant to establish that his case is arguable. But leaving aside questions as to burden of proof, the comparison with leave to apply for judicial review suffices to identify the thrust of this proposed construction: it means that the adjudicator is not to decide for himself whether in fact the applicant's removal would contravene the Convention obligations, but only whether it is arguable that it might do so. If he holds it is arguable, he will disagree with the certificate. This construction was in essence agreed to by Mr Blake, for the applicant Mehari, and Mr Nicol, for the applicant Celik, but the difference between them and Mr Pannick is as to what constitutes an arguable claim in a third country removal case; they join issue as to the true effect of paragraph 180K of the new Statement of Changes in Immigration Rules (1993) (HC 725), and more generally as to the scope of the United Kingdom's Convention obligations in a third country case. I shall have to return to the Immigration Rules, but need not for immediate purposes set out or construe paragraph 180K of HC 725 because, in my judgment, this construction of paragraph 5(3)(a) of Schedule 2 falls to be rejected on grounds unaffected by its scope. I do not think it can sensibly be suggested that in deciding whether to give a certificate under paragraph 5(3)(a) of Schedule 2 the Secretary of State is himself to carry out an exercise bearing any similarity to a refusal of leave to apply for judicial review. Under paragraph 5(1) he may give a certificate if in his opinion the claim is without foundation. I cannot believe that when Parliament came to define the term "without foundation" in paragraph 5(3)(a), it intended by implication to provide that the Secretary of State, who of course will have made the decision to remove the applicant on his own view of the facts, and who as the respondent to any appeal has his own case to urge, should under paragraph 5(1) don a judicial mantle and merely pronounce that the claim, which on its facts he has ex hypothesi rejected, is not an arguable one. His certificate is surely to indicate his view of the claim's final and overall merits. But if the Secretary of State's function as regards certification is to reach a view on the merits, the adjudicator's can be no different when he comes to decide whether to agree or disagree with a certificate that has been issued. I have said that Mr Pannick, correctly, accepts that the adjudicator does not conduct a judicial review of the Secretary of State's certificate. If therefore, as I have held, the certificate is to express the Secretary of State's view of the claim's overall merits, the adjudicator's agreement or disagreement with it is in principle concerned with the overall merits as well. Moreover, I think it extremely unlikely that Parliament would have chosen to define the expression "without foundation" in terms so distant from its ordinary meaning as are implied by the construction which I am presently considering. The words "without foundation" are apt to describe a claim which after full examination has no merits, and not merely one which on the face of it is not arguable. Statute may, of course, define any expression as the legislature chooses. But if the intention in paragraph 5 of Schedule 2 was to introduce the concept of an arguable case, rather than one which in the end was either good or bad, I do not believe that the formula "without foundation" would have been chosen as the means of its introduction. I should notice one particular argument mounted to contradict the proposition that under paragraph 5(5) and (6) the adjudicator is himself to decide the merits of the claim. It is to the effect that upon this construction there will be no case under paragraph 5(3)(a) of Schedule 2 in which the adjudicator both disagrees with the certificate and dismisses the appeal, since, if he disagrees with it, he will ex hypothesi have accepted the merits of the appeal: yet paragraph 5(6) would appear to contemplate that in all cases where the adjudicator does so disagree, the question of allowing or dismissing the appeal involves a separate and distinct exercise. However, as I will show in dealing with the next proposed construction of paragraph 5, there is scope where the adjudicator disagrees with a certificate under paragraph 5(3)(a) for him to refer the matter back to the Secretary of State under paragraph 5(6); and in addition it is clear that in the case of a certificate under paragraph 5(3)(b) the adjudicator may both disagree with the certificate and dismiss the appeal. I do not consider, therefore, that this argument should persuade me that anything like a judicial review exercise is involved in the certification procedure. So I reject this proposed construction of paragraph 5(3)(a). It follows that the certification process, if invoked, involves both Secretary of State and adjudicator in a judgment as to the factual merits of the applicant's claim. To make sense of the further arguments on the construction issue it is necessary now to refer to the new Statement of Changes in Immigration Rules. They were laid before Parliament on 5 July 1993 as House of Commons Paper No 725 under the procedure provided by section 3(2) of the Immigration Act 1971. Most of the changes which they made, including those relevant for present purposes, took effect on 26 July 1993 which as I have said is also the date when the Act of 1993 and the Rules of 1993 came into force. HC 725 makes some amendments to the main body of the Immigration Rules, but its principal substance is the addition of a new Part XIII headed "Asylum." This is plainly intended to dovetail with the new regime created by the Act of 1993. Paragraph 180D of HC 725 is in part in these terms: "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. More details are given in paragraphs 180K and 180M." Paragraph 180K, to which I have referred in passing, is headed "Third Country cases" and provides: "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 the third country before the removal of an asylum applicant." I may now turn to Mr Pannick's principal case as to the construction of paragraph 5(3)(a) of Schedule 2 to the Act of 1993, which is contested by all the applicants. It contains two elements. The first is that paragraph 5(3)(a) is only concerned with third country cases, where the Secretary of State has not considered the substance of the asylum application because he proposes to remove the applicant under paragraph 180K of HC 725. In other cases, where the substantive application has been considered, the Secretary of State may certify under paragraph 5(3)(b) if he considers that the claim is frivolous or vexatious. The second element is that as regards the certificate both Secretary of State and adjudicator are to proceed on their view of the overall merits of the case, and not on any basis akin to judicial review or Wednesbury principles [1948] 1 KB 223. I have already accepted, in principle, this latter element in rejecting a construction of paragraph 5(3)(a) by which the concept of an arguable case is made the touchstone of the certification procedure. I must therefore address the first element. I should notice at once that the Act of 1993 makes no distinction whatever on its face between third country cases and other cases. On Mr Pannick's submission, however, this distinction is the linchpin of the construction of the sub-paragraph. The first important point here, in my judgment, is that Parliament manifestly proposed some distinction between paragraph 5(3)(a) and (b). If the intention was that there be a single criterion for "without foundation" claims, nothing was easier than to enact that the words meant any claim which was frivolous or vexatious, or one which fell under any other unitary description which might be chosen. But Parliament has specified two criteria, not one. It must have been intended to isolate a particular class of case under paragraph 5(3)(a). Mr Pannick says that the class of case thus isolated is that of third country removals. He submits that this position is supported by the following materials: (a) paragraph 180D of HC 725, which I have read. He draws attention to the use there of the same words as appear in paragraph 5(3)(a): "does not raise any issue." These words are used specifically in the context of third country cases. (b) Statements made by the responsible minister as the Bill (the Asylum and Immigration Appeals Bill) which became the Act of 1993 passed through the committee stage in the House of Lords. Opposing a motion for an amendment proposed by Lord Ackner relating to the time limit for notice of appeal in the prospective procedure rules, Earl Ferrers, the minister, on 11 February 1993 having set out the conditions which it was intended should be met for the two-day limit to apply, said Hansard (HL Debates), 11 February, col 877: "The great majority of cases which fall within those conditions will be cases where the person has arrived from a safe third country to which it is proposed to remove him. Those cases are regarded as without foundation in the terms of paragraph 4 of Schedule 2." -- it became paragraph 5 -- "They do not raise any issue as to the United Kingdom's obligations under the Convention." The minister then described the rationale of the safe third country policy, and the need in cases to which it applied for great expedition in the appeal process, and continued, cols 877-878: "The longer a person remains here, the less likely it is that the authorities of the other country will accept him back . . . Certainly, access to the full asylum appeals process which the Bill creates would mean that in virtually every case a person would stay here so long that it would be impossible to get the safe third country to accept him back. That would undermine the internationally accepted principle . . . that refugees should seek asylum in the first safe country which they enter. It would make it much more difficult to prevent misuse of the asylum procedures by those who are not refugees." Towards the end of his speech he said, col 878: "An effective filtering mechanism is required to prevent the new appeals system which we are providing from becoming clogged up with claims which do not involve any real issue regarding the protection of the life and freedom of refugees, but which are claims without foundation." I must briefly consider whether, as Mr Pannick asserted, these materials constitute a legitimate aid to the construction of the Act of 1993. In my view, recourse may be had to the statements of the minister, given the House of Lords' decision in Pepper v Hart [1993] AC 593. The conditions there laid down for reference to such Parliamentary material to be permissible are met in this case. Paragraph 5(3)(a) of Schedule 2 is unclear on its face, and so may be said to be ambiguous; the material on which Mr Pannick relies is a statement by a minister promoting the Bill; and its terms are clear. As regards paragraph 180D of HC 725, Mr Nicol submitted that the Statement of Changes in Immigration Rules (1993) is not a legitimate aid to construction if only because the time has not yet passed within which it may be disapproved by either House of Parliament under section 3(2) of the Act of 1971. He does not, I think, dissent from the proposition that if the time for Parliamentary disapproval had passed, I could have regard to the paragraph: and this is surely right. In my judgment, the fact that that time has not yet passed goes perhaps to the weight I should attach to the paragraph, but cannot constitute an absolute bar against my taking it into account. At present the paragraph has legal effect for the administration of immigration control, and does so in the context of the Act of 1993. There is manifestly no kind of presumption that Parliament will strike it down. Its position is analogous to, though not identical with, that of a statutory instrument which may be prayed in aid to construe main legislation, where it is clear that the two are intended to form an overall code; I do not think that in such a case the court would have to disregard entirely the statutory instrument on the ground only that it still remained open to Parliament to strike it down by negative resolution. In my judgment, paragraph 180D of HC 725, and the statement of the minister, demonstrate that in seeking the legislation now contained in the Act of 1993 the government for its part intended that the expression "does not raise any issue" was to be taken as referring to a case where it was unnecessary for the Secretary of State to decide whether the claimant was a refugee who ought to be admitted to the United Kingdom by virtue of its Convention obligations, because he could be removed to a third country in which he did not fear persecution. It was contemplated that paragraph 5(3)(a) of Schedule 2, as of course the provision became when enacted, should be construed in this sense. This assists Mr Pannick, but I think that in any case such a construction is supported by other considerations. First, it is hard to see what distinction is intended between paragraph 5(3)(a) and (b) if it is not the difference between third country cases and those where the asylum application has been substantively considered. If the potential subject matter of the two sub-paragraphs were the same, there is no easily perceptible sense in a provision enabling the Secretary of State to certify against the claim on the alternative grounds specified. One would expect to see a single criterion, by which the Secretary of State would certify if in effect he formed the view that there was nothing in the case, whether it involved a third country removal or not. Secondly, the Convention itself is on its face silent as to the duties of a signatory state in a potential third country case. Mr Pannick disavowed the proposition that such a case does not at all involve the Secretary of State's Convention obligations; and, not least given the House of Lords' decision in In re Musisi, reported with Reg v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, I can readily understand why. In re Musisi was a third country case. Such a case may obviously involve questions of danger to life and limb, and the court will be concerned to review any decision bearing on such issues with what Lord Bridge of Harwich, at p 531G, called "the most anxious scrutiny." And Lord Bridge was clearly of the view, at p 532G, that a third country removal might involve a potential breach of article 33 of the Convention. He also pointed out, at p 531G, however, that the case before him was not one "where the claim to refugee status itself is in issue;" and this will always be so in third country cases. The point for present purposes is that such cases only contingently involve consideration of the merits of a substantive asylum claim; in other cases the Secretary of State is bound to consider them. In my view, the words in paragraph 5(3)(a) of Schedule 2, "does not raise any issue," may properly be construed as referring to those instances of the former class of case in which the contingency does not arise because there may be a safe removal to a third country. Thirdly, it is not without significance that the certification procedure provided by paragraph 5 of Schedule 2 does not apply to a case where the appeal is brought under section 8(2) of the Act of 1993, where there will be much less urgency than in a section 8(1) case since by definition the applicant will be a person who has been granted leave to enter or remain. I recognise, as was submitted to me, that paragraph 5 of Schedule 2 also applies to a section 8(3)(b) appeal against a refusal to revoke a deportation order; no doubt some such cases will be urgent, others not. But the point retains some force as an indicator of the intended scope of paragraph 5(3)(a). In my judgment, the true construction of paragraph 5(3)(a) is this: an applicant's claim does not raise any issue as to the United Kingdom's Convention obligations unless, on the facts, it is incumbent upon the Secretary of State to consider his substantive claim to refugee status. On that basis, paragraph 5(3)(a) can only apply in third country cases, since in every other case where asylum is claimed the Secretary of State will have to decide the claim to refugee status on its merits. This reasoning identifies the class of case in which a certificate under paragraph 5(3)(a) may be issued; but the class contains three sub-classes. The first arises where the special adjudicator may lawfully agree with the certificate, and so dismiss the appeal. In my judgment, he is to agree if on the material before him at the hearing of the appeal he concludes that the applicant may properly be removed to a third country under paragraph 180K of HC 725. As Mr Pannick accepts, it will be for the Secretary of State to demonstrate that the applicant may be so removed. The second sub-class arises where the adjudicator concludes on the facts that paragraph 180K of HC 725 does not justify removal; then he will disagree with the certificate, and he may either allow the appeal or refer the case to the Secretary of State for reconsideration under paragraph 5(6) of Schedule 2: in practice, he is likely to do the latter since ex hypothesi the applicant's substantive claim to refugee status would then have to be decided. The third sub-class arises where the adjudicator is in doubt as to whether, on the facts, the applicant may properly be removed within paragraph 180K of HC 725. In such a case he will also disagree with the certificate, since the Secretary of State will not have satisfied him that paragraph 180K applies. If everything else were equal, one would expect it to be the duty of the adjudicator, like any other judicial office-holder, to make up his mind one way or the other. But the time-limits are important here: the scope for resolving any proper doubt, which the adjudicator initially entertains, by an adjournment for further evidence is circumscribed by the pressure which the Asylum Appeals (Procedure) Rules 1993 exert to promote fast decision-making. Certainly the adjudicator is not to conduct an exhaustive inquiry involving anything like extensive adjournments. Thus there may be cases, though I emphasise in my view they will be very few, in which he may permissibly entertain substantial doubts on the material presented to him within the short time-scale which is prima facie prescribed. In a case of this kind, having disagreed with the certificate, the adjudicator is likely also to refer the matter back to the Secretary of State under paragraph 5(6) indicating the scope of his doubts for the assistance of the Secretary of State on the latter's reconsideration of the case. In contrast to the second sub-class, the primary subject of the reconsideration will be the applicability of paragraph 180K of HC 725, rather than the substantive asylum claim; though if, upon the case being referred back to him, the Secretary of State concludes that the applicant would be at risk if he were removed under paragraph 180K, he will no doubt go on to address the substantive claim. While the conclusion I have arrived at determines, if I am right, the correct construction of paragraph 5 of Schedule 2 to the Act of 1993, its application in practice will depend upon what circumstances are to count as showing, in a third country case, that it is incumbent upon the Secretary of State to consider the substantive claim to refugee status. Mr Blake submitted that a third country removal is only legally permissible where the Secretary of State has first ensured that the third country will admit the claimant to its own asylum procedures for the purpose of resolving his claim. Mr Nicol made a similar submission: he said that an asylum applicant cannot be removed to a third country unless the Secretary of State has been assured, by the authorities of the third country, that the asylum claim will be considered substantively: although he accepted that, absent an express assurance, there may still be a lawful third country removal if, but only if, the Secretary of State has positive and compelling evidence that the third country will give substantive consideration to the claim. In canvassing these arguments counsel relied on a variety of materials, including article 35 of the Convention, which imposes upon the contracting states an obligation to co-operate with the Office of the United Nations High Commissioner for Refugees, the statute of the UNHCR. and certain declarations, as I think I may call them, of the High Commissioner's Executive Committee. The theme of the applicants' argument was that, not least given the incorporation into English law of the Convention of 1951 by the Act of 1993, removal of an asylum applicant to a third country will only be lawful if the Secretary of State has received something in the nature of a positive guarantee that the applicant will be admitted to the third country's asylum procedures and his claim there properly dealt with under the Convention. I mean no disrespect to this argument, nor indeed to the UNHCR, whose representative has made submissions to special adjudicators deciding appeals under the Act of 1993, in rejecting it without canvassing the detail of the international materials which were relied on. These points seem to me to be critical. (i) Article 35 imposes a general obligation at the international level; it is not translated by section 2 of the Act of 1993 into a legal duty enforceable in the English courts by an asylum applicant. I do not of course suggest that article 35 is unimportant, or in any way to be sidelined. But it is clear in principle that statements of preferred practice, or policy aspiration, made by or on behalf of the UNHCR do not form part of the content of the legal obligations owed to, and enforceable in municipal proceedings by, an applicant for refugee status. If authority were needed for this, it is to be found in the speech of Lord Bridge in Reg v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, 524F-G, which comments upon the status of statements made in the "Handbook on Procedures and Criteria for Determining Refugee Status" published by the UNHCR. I do not believe that Lord Bridge's reasoning is in some sense disapplied by the enactment of section 2 of the Act of 1993. (ii) The position taken by the applicants was in large part based upon the premise that the extent of the Secretary of State's obligations under the Convention, enforceable in the English courts, has in some way been heightened by section 2 of the Act of 1993. In my judgment, this is a false premise. Manifestly the passage into law of the Act of 1993 does not affect the scope of the United Kingdom's obligations at the international level. As regards domestic law, before the Act of 1993 was passed, the Secretary of State had undertaken by the then current immigration rules in effect to abide by the Convention. Section 2 of the Act of 1993 merely requires that he should do the same thing in future. Under the pre-existing regime the government had created at any rate a legitimate expectation that the Secretary of State would not remove an asylum claimant from the United Kingdom where to do so would, or perhaps reasonably might, expose him to persecution: whatever the reach of the obligation not thus to remove a claimant, it is not lengthened by section 2 of the Act of 1993. (iii) The applicants specifically submitted that it would be a breach of the United Kingdom's Convention obligations were the Secretary of State to remove a claimant to a third country from which he might be returned here. In a document published by Amnesty International on 26 July 1993 this scenario is, perhaps reasonably, described as "passing the buck." This argument is misconceived: however undesirable it might be on humanitarian or other grounds, it is no breach of the Convention that a claimant be returned to the United Kingdom by a third country without consideration of his substantive claim, because such a course of action would not expose him to a Convention risk; nor therefore is it any breach for the United Kingdom to send the claimant to a safe third country even if the Secretary of State appreciates that he may simply be sent back here again. This conclusion is I believe supported by the decision of the Court of Appeal in Bouzeid v Secretary of State for the Home Department [1991] Imm AR 204; though, as that case indicates, there may be a sustainable legal complaint if the Secretary of State were to send a claimant back to the third country for a second time. I also reject Mr Nicol's kindred argument that it would be a breach to return an applicant to a third country which might then return him to a fourth, not being the country of feared persecution, where his claim might fall to be considered substantively, or which might even send him to a fifth, and so on. No doubt in cases where there is something like a chain of states, through which the claimant has passed, between the country of feared persecution and the United Kingdom, the Secretary of State must give careful consideration to the extent to which each state, on the facts known to him, adheres to its Convention obligations; and there will be special factors for his assessment if one or more of the intervening countries is not a signatory to the Convention. In my judgment, the true position is that under paragraph 180K of HC 725 the Secretary of State is to form a view on the information known to him (a) as to whether the country to which he proposes to remove the claimant is a safe country as defined by the paragraph, and (b) as to whether he is barred by the paragraph from removing the claimant by virtue of either of the specific provisions set out in the paragraph at sub-paragraphs (a) and (b). The United Kingdom's Convention obligations do not require any further stipulations to be written into the paragraph than those which it already contains. If, having formed his view, he gives a certificate under paragraph 5 of Schedule 2, the adjudicator on any subsequent section 8 appeal must decide whether he agrees with it in light of the construction of paragraph 5 of Schedule 2 which I have set out. The discipline which this system imposes upon the Secretary of State consists in the fact that the adjudicator must independently judge the merits of the certificate. I heard some submissions that paragraph 180K of HC 725 is repugnant to section 2 of the Act of 1993, and thus ultra vires the Secretary of State; but it follows from what I have said that this is not so. I may now turn to the individual applications before me. It will not be necessary to travel through the reasoning of each adjudicator's decision, because the principal thrust of the applicants' complaints depends upon putative constructions of the Act of 1993 which I have already rejected, and also because the remaining discrete arguments may be resolved without recourse to much in the way of detail. But I should make these observations. Some of the decisions before me suggest that, in the short time in which the Act of 1993 has been in force, the special adjudicators have not always recognised the clear distinction between their function in deciding whether to agree with the Secretary of State's certificate, and their separate function of deciding whether or not to allow or dismiss an appeal or refer the case to the Secretary of State as appropriate. Because in these particular cases, save for those of Mehari and Augusto which for reasons I will shortly explain will have to be reconsidered, I shall hold that the adjudicator was quite entitled to agree with the certificate and thus necessarily dismiss the appeal, any want of attention to this distinction is without practical significance; and I should in any case make it clear that I mean no criticism of the adjudicators, who have had to grapple with new legislation which is not altogether straightforward and in circumstances where they have had to work within the tight time-limits which I have described. It is, however, of great importance that the adjudicators appreciate that in a case under paragraph 5 of Schedule 2 their first distinct task is to decide whether or not they agree with the certificate. Secondly, some of the decisions betray a perception that once a certificate is given, it has to be accepted by the adjudicator. This has arisen out of a reliance placed on the decision of Schiemann J in Reg v Secretary of State for the Home Department, Ex parte Hilaludeen [1993] Imm AR 250. In that case, however, the court was dealing with an application for leave to move for judicial review directly against the Secretary of State's decision to remove the applicant to France without consideration of his substantive asylum claim. The Secretary of State had given a certificate to the effect that he believed the applicant would be re-admitted to France. Schiemann J said that the court had to take such a certificate at face value unless the applicant could demonstrate that there was no basis on which the Secretary of State could be so satisfied. I see no reason to doubt Schiemann J's conclusion, and none was suggested, but the case is entirely irrelevant to the adjudicator's functions on appeals under the Act of 1993. Schiemann J had to deal with the case before him on the public law Wednesbury basis ([1948] 1 KB 223); an adjudicator in a case under paragraph 5 of Schedule 2 has to consider the merits of the Secretary of State's certificate. Again, however, such references as there are in the decisions before me to Ex parte Hilaludeen do not matter, because the adjudicators decided that on the merits the applicants before them could be removed to the third country in question without breach of Convention obligations, and to that extent impliedly agreed with the merits of the Secretary of State's certificate. I should turn to the cases which will have to be reconsidered. It is accepted by Mr Pannick that the adjudicators' decisions in the cases of Mehari and Augusto should be quashed. In the case of Mehari this is because the adjudicator in her decision seems to have held that the onus was on the applicant to show that his removal would breach the United Kingdom's Convention obligations. I agree that this vitiates her decision, although she did not put the matter in such plain terms, perhaps because, as it seems to me, she rolled together her function of deciding whether to agree or disagree with the Secretary of State's certificate and her disposal of the appeal as such: and this is a feature, not unique to Mehari's case, to which I have already referred. I will grant an order of certiorari in Mehari's case. I should not, however, leave that case without noticing two further points taken by Mr Blake. First, he submitted that even on Mr Pannick's highest position as to the construction of paragraph 5 of Schedule 2, and, he would say, on the construction which I have adopted, upon the factual material before the adjudicator she was bound to disagree with the Secretary of State's certificate.LC no doubt that there are circumstances in which the public law court ought to exercise the jurisdiction, which it certainly possesses, to give advisory opinions; but this is not one of them. I will make only the following observations. Mr Blake accepts that the Secretary of State's decision letter, indicating that the applicant could properly be removed to Italy because that country would not, on the information available to him, further remove the applicant to Ethiopia without first considering his substantive asylum application, is material which the adjudicator was entitled to take into account. The evidence the other way, which was placed before the adjudicator, is summarised in Mr Blake's skeleton argument. It consists in large measure of documents from Amnesty International suggesting recent failures by Italy to comply with its Convention obligations. A large part of this evidence concerned cases in which, allegedly, refugee claimants returned to Italy had then been returned again to the United Kingdom: and I have already held that this, however stressful or undesirable it may be, does not amount to breach of the Convention. I am not prepared to hold that on the evidence before the adjudicator, she was bound to disagree with the certificate; but I am not to be taken as deciding the point, because the next adjudicator must assess for himself whatever evidence is put before him. It may not, of course, be identical with that put before the previous adjudicator. Mr Blake's other point concerns the fact that his client is a minor, having been born on 1 December 1975. Mr Blake says that by virtue of paragraphs 180P and 180Q of HC 725, which I have not set out, and a statement by the minister in the House, which it is said gave rise to a legitimate expectation, the Secretary of State was not entitled to return the applicant to Italy without special safeguards, and in particular without ensuring that he would be received there. I heard some argument as to whether it is constitutionally permissible to found in legal proceedings an enforceable legitimate expectation upon anything said in Parliament. But again, I do not propose to decide the point: as Mr Blake himself asserted in reply the removal directions in this case have become entirely academic since, obviously, the applicant will be permitted to stay until his appeal has been re-determined. I decline to embark upon an excursus into the law of legitimate expectations and the use of Parliamentary material in a case where, for all I know, there may not be any further removal directions at all. In Augusto's case the special adjudicator disbelieved the applicant's evidence to the effect that at a particular stage he did not realise that he had arrived in France, and also his evidence that he felt he was at some risk in Spain, through which he passed but where he did not claim asylum: but the adjudicator seems to have treated these findings as relevant to the question whether the applicant could be safely returned to France. However, such findings do not and could not logically bear on that issue at all. In this case also, therefore, I will grant an order of certiorari. It is unnecessary to say any more about Augusto's case. I propose next to take the case of Celik, because Mr Nicol advanced a greater weight of distinct submissions than was done in the other cases. First, I should indicate that in this case the applicant led no evidence as to what might happen to him in Holland if he were to return there. The Secretary of State had given a decision letter, similar to that in the case of Mehari and indeed other cases, indicating his view, on information available to him, that the Dutch authorities would not further remove the applicant to Turkey without first considering his asylum application. The adjudicator was plainly entitled to take that into account, and there was nothing the other way. Some reference was made to a copy document, apparently emanating from the Dutch authorities, indicating that they would take the applicant back. Mr Nicol showed me a passage on the last page of the appeal decision where the adjudicator clearly attaches very little if any weight to the document, and he submitted that there is nothing in it to say for how long Holland would be prepared to take back his client, nor whether his substantive claim would be considered. But even if this document offered no real assistance to the Secretary of State's case, it certainly did nothing to advance the applicant's. In the result there can thus be no quarrel with the decision in the applicant's case unless any of Mr Nicol's separate points ought to prevail. The first which I will take was this. Mr Nicol submitted that the adjudicator was guilty of procedural unfairness by virtue of the way in which in his decision he rejected the applicant's evidence that he did not have the opportunity to claim asylum in any country through which he passed before arriving in Holland, and that in Holland he spent only one to one and a half hours at a port, and was under the direction and control of others throughout that period. If he had no such opportunity, that would go to the legitimacy of his removal having regard to the requirements of paragraph 180K(a) of HC 725. The adjudicator, before whom the applicant gave evidence, disbelieved his account. In rejecting it, as his decision shows, he was moved by what he saw as major discrepancies between the evidence and what the applicant had said in interview. He found as a fact that there had been nothing in the way of the applicant seeking political asylum at the port in Holland. Mr Nicol's argument is that the discrepancies were not put to his client in the witness box, either by the Home Office representative or by the adjudicator himself. He has filed evidence which, he says, shows that if they had been put to him he would have had a good explanation. I need not rehearse the detail because, in my judgment, the point is bad in principle. The applicant was represented at the hearing before the adjudicator by counsel. Counsel had in his possession the record of interview, and must be taken as having known what his client was going to say in the witness box. He was or should have been alive to the potential importance of any discrepancy between the two accounts. It was open to him to deal with it, either in the course of his client's evidence in chief or otherwise, and if he failed to do so, that gives rise to no imputation of unfairness by the adjudicator who was entitled to make findings of fact on the evidence as he reasonably saw fit. The next argument with which I will deal is Mr Nicol's submission that the Secretary of State possessed a discretion within the terms of paragraph 180K of HC 725 whether or not to remove his client to a third country even if it were a safe one under the paragraph; and that his exercise of this discretion was itself appealable to the adjudicator, who should thus have decided whether the discretion ought to have been exercised differently, but did not effectively do so. This submission was founded on section 19(1)(a)(ii) of the Act of 1971 which falls within Part II of that Act; and, indeed, that sub-paragraph deals with an adjudicator's jurisdiction in discretion cases. By paragraph 4(2)(b) of Schedule 2 to the Act of 1993, section 19 of the Act of 1971 is to have effect as if section 8 of the Act of 1993 were contained in Part II of the Act of 1971. The submission is, however, misconceived, because an appeal under section 8 of the Act of 1993 is not a discretion case: the only ground which the adjudicator is to consider is the assertion that the applicant's removal as proposed would contravene the United Kingdom's Convention obligations. So section 19(1)(a)(ii) can have no application in a section 8 case. Next, Mr Nicol submitted that the Secretary of State was obliged by rule 5(6) of the Rules of 1993 to serve on the applicant, and the adjudicator and the UNHCR representative, any documents supporting the reference in the decision letter to "the information available . . . about the policies and practice of Holland." The obligation in the sub-rule is to serve certain particular documents, and "any other document referred to in the decision which is being appealed." This is a bad point. The decision letter did not refer to any documents. In my judgment, rule 5(6) only requires service of documents specifically referred to, or, at least, necessarily identified by the terms of the decision letter. Mr Nicol also submitted that the Secretary of State's certificate was bad, or invalid, because it was not proved that the person signing it had in fact been authorised to do so on behalf of the Secretary of State. He said that section 32(2) of the Act of 1971 has no application to certificates under paragraph 5 of Schedule 2 to the Act of 1993. Section 32(2) of the Act of 1971 provides: "Any document purporting to be an order, notice or direction made or given by the Secretary of State for the purposes of this Act and to be signed by him or on his behalf, and any document purporting to be a certificate of the Secretary of State so given and to be signed by him, shall be received in evidence, and shall, until the contrary is proved, be deemed to be made or issued by him." Under the signature on the certificate in Celik's case appear the words "for and on behalf of the Secretary of State," and, at the bottom left, the words "Home Office Asylum Division." There was, moreover, another document before the adjudicator undoubtedly put in by the Home Office, signed by Mr Ing, who also signed the decision letter, which asserts: "The Secretary of State has . . . certified this claim to be without foundation." In my judgment, quite irrespective of section 32(2) of the Act of 1971, the adjudicator was plainly entitled to take the certificate as having been signed on behalf of the Secretary of State -- there was evidence before him to that effect; indeed, it would have been perverse to do otherwise. It was also submitted that there should have been evidence before the adjudicator of the grading or experience of the person who signed the certificate. Mr Nicol referred to Reg v Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254, 303. But that case is authority for the proposition that it is for the Secretary of State to decide what level of officer is apt for the performance of a particular function. He was not, in my judgment, obliged to lead any positive evidence before the adjudicator as to the status of the officer selected to sign the certificate in support of his case that the certificate should be agreed to. Mr Nicol next submitted that the certificate was bad because it bears no date. It must have been signed after 21 July 1993, the date of the applicant's arrival, and no later than 19 August, the date of the decision letter. Within that period, said Mr Nicol, representations were made on the applicant's behalf which might properly have affected the Secretary of State's judgment; so that it is not possible to say precisely what material the Secretary of State had in mind when the certificate was made. I am not aware of any evidence to suggest that the question whether Holland was a safe third country could possibly have depended on anything said or done between 21 July and 19 August 1993. No doubt it will be good practice for certificates under paragraph 5 of Schedule 2 to be dated; but on the facts here I do not regard Mr Nicol's submission as disclosing any perceptible point of law going to the validity of the certificate. The other cases, in my judgment, also fall to be determined adversely to the applicants in the light of my findings as to the construction of the Act of 1993 and the effect of paragraph 180K of HC 725, but there are some individual points with which I must deal. In the case of Hersi Mr Pannick accepts that the adjudicator, on the last page of his decision, cast the burden on the applicant to prove that he would not be re-admitted to Germany for his asylum claim to be considered; whereas it is for the Secretary of State to make good his certificate. However, there was no material whatever before the adjudicator to indicate that Germany might not fulfil her Convention obligations, and the Secretary of State's decision letter indicated the contrary. I accept Mr Pannick's submission that on the evidence no reasonable adjudicator could have disagreed with the certificate. In fact much of the burden of Hersi's case on the facts was that he had been given to understand that there were instances of asylum-seekers in Germany being ill-treated, sometimes seriously so. But no case was made to the effect that the German authorities might not or would not fulfil their Convention obligations. Lastly, Mr Abbott on the applicant's behalf submitted that the adjudicator was wrong to refuse his client's applications for an adjournment of the appeal, so as to obtain the services of an interpreter and/or legal assistance. But, as the adjudicator pointed out, he gave evidence in perfectly understandable English; and he had been interviewed in English, and had signed a document stating that he did not wish to be provided with an interpreter. The question of an adjournment for legal assistance was one for the adjudicator's discretion within the constraints imposed by rules 9 and 10 of the Rules of 1993. I am quite unable to detect any error in the refusal of an adjournment, for either of the reasons urged, such as to attract judicial review relief. In Doreh's case the only material put before the adjudicator to support the contention that Italy might not fulfil her Convention obligations was evidence of instances where claimants had been returned by that country to the United Kingdom after being removed there from the United Kingdom: the Amnesty International document "Passing the Buck," which also featured in Mehari's case, was put in. I have already held that this founds no objection to a third country removal on Convention grounds. The applicant claimed to have family connections in the United Kingdom, namely two cousins and certain other more distant relatives, and so it was put to the adjudicator that there were special circumstances why he should not be removed from this country. The adjudicator considered that such factors could not help the applicant. Mr de Mello on his behalf says that the adjudicator should have decided whether as a matter of discretion his client ought not to be removed from the United Kingdom. But this is the same point upon section 19(1)(a)(ii) of the Act of 1971 as was taken by Mr Nicol, and falls to be rejected for the same reasons as I have given in dealing with his argument. In the result, then, orders of certiorari will go in the cases of Mehari and Augusto; the other applications will be dismissed.

DISPOSITION:

Orders accordingly. Legal aid taxation of applicants' costs

SOLICITORS:

Winstanley-Burgess; White Ryland; Thiru & Co; Humberside Law Centre, Hull; Treasury Solicitor.
 

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.