UK: Key ruling on "safe third countries"
01 September 1999
In a ruling which may affect decisions in a considerable number of asylum cases, the Court of Appeal, on 23 July, held that the Home Secretary had acted unlawfully in issuing certificates ordering the return of two asylum seekers to Germany and one to France, on "safe third country" grounds. This is a crucial ruling as the core principle underpinning the court's decision appears to have been a determination to stand by a strict interpretation of the 1951 Geneva Convention Relating to the Status of Refugees, (and its 1967 Protocol); in particular, to uphold the fundamental and internationally applicable refugee definition contained in article 1A (2) of the Convention.
The three asylum seekers in question, Adan, Subaskaran and Aitseguer, sought leave to apply for judicial review of the Home Secretary's decision to remove them on "safe third country" grounds, (in line with the Dublin Convention), by issuing certificates to that effect under Section 2(2)(c) of the Asylum and Immigration Act 1996.
In all three cases the applicants were claiming that they were at risk of persecution from non-state agents. Ms Adan, from Somalia, had her claim for asylum rejected in Germany and subsequently came to the United Kingdom. She was seeking asylum from an armed group who were persecuting her clan. Mr Subaskaran fled via Germany from Sri Lanka, fearing persecution at the hands of the Tamil Tigers. Mr Aitseguer fled from Algeria via France because of death threats made against himself and his family by Islamic fundamentalists. Their grounds for seeking judicial review of the Home Secretary's decision were that their removal to France and Germany would contravene the United Kingdom's obligations under the 1951 Geneva Convention, because they could not be granted refugee status in France or Germany, owing to those countries' interpretations of certain parts of the Convention. Before the appeal hearing date, the Home Secretary decided that he would consider the substantive asylum application in each case, perhaps hoping to avoid the court's consideration of the issue of "safe third countries". The court, however, held that there was sufficient public interest in a hearing on these very matters for it to hear the cases in full. The "safe third country" issue was one which would arise in a large number of pending cases.
Broadly constructed, the prevailing interpretation of the 1951 Convention in France and Germany, known as the "accountability" theory of interpretation, requires persecution, (the basis for a claim for asylum), to be attributable to the state. Thus not only does an asylum seeker have to show that s/he is being persecuted, or fears being persecuted for one of the five reasons enumerated in the Convention, but also that, in the case of Germany, the persecution is directly attributable to the state or to a quasi-state authority. If a claimant seeks to rely on persecution by a non-state agent, s/he would also have to show that the state either tolerated or encouraged the persecution, or was unwilling to afford protection against it. In France, it is possible to claim fear of persecution by a non-state agent, but in this case it must also be shown that the state was unwilling to afford protection.
Article 1A(2) of the 1951 Convention defines a refugee as any person who, "Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of origin and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country....". The approach to interpreting the 1951 Convention which prevails in the United Kingdom, and indeed in most of the states party to the Convention, (the "protection" theory), recognises a possible inability of a state to afford protection from persecution, as well such unwillingness as posited above. This inability may, for example, arise from there being no competent o