UK - Court of Appeal, 19 January 2000, Secretary of State for The Home Department, Ex Parte Adan R v. Secretary of State for The Home Department Ex Parte Aitseguer, R v. [2000] UKHL 67

Facts:

The two applicants were seeking to resist their transfer under the Dublin Convention to Germany and France respectively in 1998, at a time before the Qualification Directive was in force. The first  was a Somali national who feared a rival clan and whose asylum claim had been refused in Germany because the 1951 Refugee Convention was interpreted not to provide protection when, as in Somalia, the governmental authority had collapsed and there was no State to which the persecution could be attributed. The second applicant was an Algerian national who was resisting removal to France because he feared the Groupe Islamique Armé (GIA). The GIA was a non-state agent of persecution that the Algerian State was unable to provide protection against. The Secretary of State accepted that there was a substantial risk that French authorities would refuse the asylum claim because there was no state toleration or encouragement of the threats by the GIA, and therefore no persecution attributable to the Algerian state. The Secretary sought to remove them from the UK, after certifying that France and Germany were safe third countries. Consequently, the applicants therefore were only entitled to a make a non-suspensive appeal of the decision. They therefore applied for Judicial Review of the decision to certify their claims.

Decision & reasoning:

The Court allowed the applicants’ appeals, and quashed the decisions of the Secretary of State that France and Germany were safe third countries for the applicants.

The Court held that the 1951 Refugee Convention, like other multilateral treaties, had one true autonomous interpretation which must be decided upon as a question of law. In the absence of a ruling from the International Court of Justice under Art 38 of the 1951 Refugee Convention, national courts had to identify the one true interpretation.  They should do this by reference to the sources listed in the Vienna Convention of the Law of Treaties, Art 31 and 32 “without taking colour from distinctive features of the legal system of any individual contracting state”. The principle of comity, whereby criticisms of the courts of other states should be avoided, did not override the obligation to apply the “one autonomous meaning”.

The Court held, on the basis of the House of Lords decision in Adan (see separate summary), that “there is no material distinction between a country where there is no government (like Somalia) and a country when the government is unable to afford the necessary protection to citizens (such as Algeria). Both are covered by Art 1A(2)”.  The interpretations in France and Germany that were or would have been applied to these cases at that time did not accord with the one autonomous meaning of the 1951 Refugee Convention.

The Court did not consider whether alternative complimentary forms of protection in France or Germany were relevant.

Outcome:

Applicant’s appeals were allowed.

Observations/comments:

The substantive issue of the difference in the interpretation of Art 1A(2) between the UK, France and Germany has been resolved by the agreement and coming into force of the Qualification Directive. Further the UK domestic legislative framework in respect of third country removals has been changed. However, the principle established in respect of the interpretation of the 1951 Refugee Convention in assessing whether a State is a safe third country remains established.

Other sources:

Vienna Convention on the Law of Treaties, Aust, Modern Treaty Law and Practice, 2000, Statute of the Office of the United Nations High Commissioner for Refugees, General Assembly Resolution 428(V) of 14 December 1950, para. 8.