|
Court of Appeal v. Secretary
of State for the Home Department and another v. Secretary
of State for the Home Department and another v. Secretary
of State for the Home Department and another Reported as: [2001] EWCA Civ
789; [2002] 1 QB 129; Times L. Rep. [This is one of a few post-WW II published judgments transcribed by volunteers in
full-text solely for political discussion of the international- and humanitarian-law issues and furnished without charge to interested participants: United States users
see 17
U.S.C §107; and see Canadian
Copyright Act 50-year duration and “fair dealing
exceptions”] COUNSEL: Richard
Nicholas Blake QC and
Edward Grieves for the applicants, Zulfiqar Ali and Abid Ali. Nigel SOLICITORS: Solicitors: Treasury Solicitor; Powell & Co; Bhogal
Lal, Hounslow. JUDGES: Lord
Phillips of Worth Matravers MR, Peter Gibson and
Latham LJJ DATES: 2001
March 27, 28; May 17 Immigration – Illegal
entrant – Application for asylum – Pakistani nationals
applying for asylum after entry into United Kingdom – Order designating
Pakistan as country in respect of which there was “in general no
serious risk of persecution” following parliamentary debate –
Whether validity of order reviewable by court
– Asylum (Designated Countries of Destination and Designated Safe
Third Countries) Order 1996 (SI 19962671), art 2 In 1996 the Secretary
of State for the Home Department, in purported exercise of the powers conferred
upon him by paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals
Act 1993[1],
as substituted, and by section 2(3) of the Asylum and Immigration Act 1996, laid
before Parliament in draft form the Asylum (Designated Countries of Destination
and Designated Safe Third Countries) Order 1996[2],
article 2 of which designated Pakistan as a country in respect of which there
was “in general no serious risk of persecution”. The draft
Order was the subject of short debates in both Houses of Parliament and was
approved by both Houses by the affirmative resolution procedure. There was no
mention in the course of the debates of the position of women in Pakistan, although there was some discussion about the treatment
of Ahmadis, a minority religious sect within the
country. The applicant asylum seekers, who were citizens of Pakistan, were subsequently certified under the Order as
subject to a statutory expedited asylum procedure, which deprived them of a
right of appeal from the decisions of special adjudicators. Following the
dismissal of their asylum claims by special adjudicators, the applicants
applied for judicial review of the Secretary of State’s decision to
include Pakistan in the list of designated countries on the ground that, having
regard to evidence concerning, in particular, the treatment of women and Ahmadis in that country, Pakistan was not a country in respect of which there was in
general no serious risk of persecution. The judge granted the applications. On appeal by the
Secretary of State— Held, dismissing the
appeal, that the court was entitled to review on grounds of illegality,
procedural impropriety or unreasonableness the legality of subordinate
legislation made by a minister and approved by affirmative resolution of both
Houses of Parliament, but the extent to which a statutory power was open to
judicial review on the ground of irrationality depended critically on the
nature and purpose of the enabling legislation; that the fact that, in the
course of debate, the Secretary of State or others made statements of fact
supporting the legitimacy of the subordinate Appeal from Turner J By applications dated
respectively 4 and 8 November 1999 the applicants, Zulfiqar
Ali and Abid Ali, sought judicial review by way of,
inter alia, declarations and orders of certiorari to
quash (i) the determination by special adjudicators
refusing their appeals from the decision of the Secretary of State for the Home
Department refusing their asylum claims, (ii) the decision of the Secretary of
State for the Home Department to certify their asylum applications pursuant to
paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as
substituted by section 1 of the Asylum and Immigration Act 1996, on 17 February
1998 and 15 April 1999 respectively, (iii) the Secretary of State’s decision
to refuse to discharge the [*132] certificates
on 23 September and 27 October 1999 respectively and (iv) the decision of the
Secretary of State to refuse to remove Pakistan from the list of designated
countries contained in the Asylum (Designated Countries of Destination and
Designated Safe Third Countries) Order 1996 on 23 September and 27 October
1999. By an amended
application dated By order dated By an appellant’s
notice filed on 2 February 2001 the Secretary of State appealed on the
following grounds: (1) the judge failed to give proper weight to the approval
by Parliament of the 1996 Order; (2) the judge erred in applying the approach
in R v Secretary of State for the Home Department,
Ex p Turgut [2001] 1 All ER 719; (3) the judge misunderstood
the relevance to the present proceedings of the decision of the House of Lords
in R v Immigration Appeal Tribunal, Ex p
Shah [1999] 2 AC 629; (4) if, contrary to the Secretary of State’s
case, the inclusion of Pakistan in the 1996 Order was unlawful, no relief
should be granted against the order because the applicants acted with undue
delay and the grant of relief would be detrimental to good administration; (5)
if and in so far as the judge found that the certificates of the applicant Asif Javed and Zulfiqar Ali were flawed by reason of matters over and
above the inclusion of Pakistan in the 1996 Order, there was no proper basis
for so finding. The facts are stated in
the judgment of the court. Nigel The court should not
find that the inclusion of Pakistan in the Order was irrational in the absence
of bad faith: see R v Secretary of State for
the Environment, Ex p Nottinghamshire County Council [1986] AC 240; R v Secretary of State for the Environment,
Ex p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521,594-597, 602a-c and R v
Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants
[1997] 1 WLR 275, 290-292.[Reference was also made to O’Connor v Chief Adjudication Officer [1999] ELR 209, 215,
220-221, 227b, g, 228d.] The Secretary of State’s decision to designate
Pakistan under paragraph 5(2) of Schedule 2 to the 1993 Act was a political
judgment which was endorsed by affirmative resolution of both Houses of
Parliament. The policy considerations affecting the United Kingdom’s foreign
relations do not render the Order non-justiciable,
but they are a relevant factor in determining the appropriate standard of
review: see Council of Civil Services
Unions v Minister for the Civil Services [1985] AC 374, 398c-g, 407b, f,
411c-f, 418a-c; R v Secretary of State
for Foreign and Commonwealth Affairs, Ex p Butt (unreported) 9 July 1999;
Court of Appeal (Civil Division) Transcript No 1356 of 1999 and Adams v Adams (Attorney General intervening)
[1971] P 188. The adoption by the court of a more intensive review than that
laid down by the Hammersmith and Fulham London Borough Council case [1991] 1 AC 521
would be inconsistent with article 9 of the Bill of Rights 1689 (1 Will &
Mary, sess 2, c 2) and the common law principle of respect
by the courts for decisions of Parliament: see Hamilton v Al Fayed [1999] 1 WLR 1569, 1585, 1587-1588, 1589h;
[2000] 2 WLR 609, 620a-d; Prebble v Television
New Zealand Ltd [1995] 1 AC321, 332c-d, 337a-g and Pepper v Hart [1993] 1 AC 593, 638f-h, 639g, 646c;and contrast R v Secretary of State for the Home
Department, Ex p Launder [1971] 1 WLR 839, 857a-d. The approach adopted in
R v Secretary of State for the Home Department,
Ex p Turgut [2001] 1 All ER 719 is relevant only
where the decision under challenge breaches article 3 and, perhaps, other
articles of the European Convention for the Protection of Human Rights and Fundamental
Freedoms: see pp 721-722, d, 723-729, 734h-j, 736g. The removal, by
designation, of the right to apply to the Immigration Appeal Tribunal for leave
to appeal does not constitute a breach of article 3 or any other article of the
Convention. In R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629 the
House of Lords were not concerned with the question whether there was a serious
risk of persecution of women in Pakistan: see pp 635c-636g, 637e, 640-643,
644-645, 646c-d, 652-653, 655b-h, 656g-h, 658-659, 660f-g. In relation to the
position of Ahmadis in Pakistan, see Kaleem Ahmed v
Secretary of State for the Home Department (unreported) Even if the inclusion
of In so far as the judge
found that the certificates of the applicants Asif Javed and Zulfiqar Ali were
flawed by reason of matters over and above the inclusion of Pakistan in the 1996 Order, there was no proper basis for
the finding. [*134] Richard The 1996 Order was flawed
either because it did not meet the test in Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, with or without the gloss in R v Secretary of State for the Home
Department, Ex p Turgut [2001] 1 All ER 719, or
because the Secretary of State’s appraisal of the facts was unsustainable
and erroneous in law. The court’s powers of review are not affected by
the fact that Parliament approved the Order: see Wade and Forsyth’s Administrative
Law 8th ed (2000), pp 376-377, 854, 860, 862 and de Smith, Woolf
& Jowell’s Judicial Review of Administrative Action, 5th ed
(1995), pp 311-313, paras 6-030-6-032. Review is made
on Wednesbury
grounds, or, where the human rights context requires, with a “heightened
scrutiny”: see R v Ministry of Defence, Ex p Smith [1996] QB 517 and R v Secretary of State for the Home Department,
Ex p Turgut [2001] 1 All ER 719. Review is not
limited to cases of bad faith: see R v
Secretary of State for the Environment, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521; R v Secretary of State for the Environment,
Ex p Greater London Council (unreported) 3 April 1985 and O’Connor v Chief Adjudication
Officer [1999] ELR 209,220e-221h. [Reference was also made to R v Electricity Comrs,
Ex p London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171.] R v Secretary of State for the Environment, Ex p
Nottinghamshire County Council
[1986] AC 240; R v Secretary of State for
the Environment, Ex p Hammersmith and Fulham London
Borough Council [1991] 1 AC 521; R v
Secretary of State for Social Security, Ex p Joint Council for the Welfare of
Immigrants [1997] 1 WLR 275 and R v
Secretary of State for Foreign and Commonwealth Affairs, Ex p Butt (unreported)
9 July 1999; Court of Appeal (Civil Division) Transcript No 1356 of 1999
concerned narrow categories of case relating to matters of economic or national
security policy which cannot be extended to provide immunity from judicial
scrutiny of the decision to designate Pakistan in the 1996 Order. That decision
could not lawfully be made unless the statutory criteria in paragraph 5(2) of
Schedule 2 to the 1993 Act were satisfied: see R v Secretary of State for the Environment, Ex p Pakistan was not a
country of which it could be said that there was in general no serious risk of
persecution, in view of the situation of Pakistani women and Ahmadis: see Kaleem Ahmed v
Secretary of State for the Home Department (unreported) 7 December 1995; Secretary of State for the Home Department v
Beg (unreported) 21 August 1997; Horvath
v Secretary of State for the Home Department [2001] 1 AC 489; R v Immigration Appeal Tribunal, Ex p Shah
[1999] 2 AC 629, 635-636 and the Home Office Country Assessments and United
States’ State Department Reports (1997 and 1999). The 1996 Order was
therefore flawed by error of law either because the Secretary of State
misapprehended the relevance of persecution by non-state agents or because the
decision fell outside the range of responses open to him. There is a clear
overlap between the provisions of the 1951 Refugee Convention and the human
rights afforded by article 3 of Schedule 1 to the Human Rights Act 1998. The
application of the approach in R v Secretary
of State for the Home Department, Ex p Turgut [2001]
1 All ER 719 is consistent with the concern of the court for human rights: see R v Ministry of Defence,
Ex p Smith [1996] QB 517, 554 and R v
Secretary of State for the Home Department, Ex p Canbolat
[1997] 1 WLR 1569. In any event, the ordinary Wednesbury test applies to the
present case. As to delay, the
submissions of Zulfiqar Ali and Abid
Ali are correct. An extension of time can be granted: see R v Secretary of State for the Home department, Ex p Emin (unreported) Nicholas Blake QC and
Edward Grieves for the applicants, Zulfiqar Ali and Abid Ali. The judge correctly reviewed the evidence of persecution
in accordance with the approach in R v
Secretary of State for the Home Department, Ex p Turgut
[2001] 1 All ER 719. He received the underlying material but asked the question
could a properly self-directing Home Secretary conclude the risk was other than
serious. The evidence available
to the Secretary of State of a serious risk of persecution of women, Ahmadis and members of the Mohajir
Quami Movement (“MQM”) rendered his
decision to designate Pakistan unlawful. [Reference was made to Secretary of State for Education and Science
v Tameside Metropolitan Borough Council [1977] AC
1014, 1047 and Wade and Forsyth’s Administrative Law 8th ed, pp
416-425.] Whether there is a risk of persecution is a question involving an
objective and verifiable assessment of the evidence. No opinion that there is
no substantial risk can properly be formed if the evidence points to the contrary
conclusion. The subject matter of the present decision must be distinguished
from a purely political question, which is a matter for the executive: see R v Secretary of State for the Environment, Ex
p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521,592-593, 594c-d; R v
Secretary of State for the Environment, Ex p Nottinghamshire County Council
[1986] AC 240; R v Secretary of State for
the Environment, Ex p Hammersmith and Fulham London
Borough Council [1991] AC 521; R v
Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants
[1997] 1 WLR 275; R v Secretary of State for
the Home Department, Ex p Simms [2000] 2 AC 115,131e and R v Secretary of State for the Home
Department, Ex p Saleem [2001] 1 WLR 443,
449-450, 457-459. No issue of foreign policy is involved in designation.
[Reference was made to Reviewing the legality
of subordinate legislation does not involve impugning the political judgment of
Parliament within the meaning of [*136] article
9 of the Bill of Rights 1689. The court is entitled to examine the material relating
to country conditions which was available to the Secretary of State in order to
decide, applying a “heightened scrutiny” test because
fundamental human rights are in issue, whether he came to a rational decision.
The court is at least as well and maybe better placed than a politically
vulnerable executive to make a dispassionate assessment of risk: see R v Secretary of State for the Home Department,
Ex p Turgut [2001] 1 All ER 719. Having regard to
the treatment of Ahmadis, women and MJM members in
Pakistan, and the reasons he and his officials have given the court was
entitled to conclude that the Home Secretary misdirected himself in including
and maintaining Pakistan in the 1996 Order: see R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629; R v Secretary of State for the Home
Department, Ex p Adan [2001] 2 AC 477, 519 and Adan v Secretary of State for the Home
Department [1999] 1 AC 293. [Reference was also made to the European Union
Committee of Ministers’ Resolution on Manifestly Un-founded
Applications for Asylum, 30 November and Designation must not
violate the principle of equality of treatment of refugees recognised
in article 3 of the Geneva Convention relating to the Status of Refugees
(1951): see Arthur J S Hall & Co v
Simons [2000] 3 WLR 543 and Abdulaziz, Cabales and Balkandali v United
Kingdom (1985) 7 EHRR 471, p 499, para 72, p 501,
para 78. Of particular relevance here is the effect
of certification in depriving an asylum seeker of his right of appeal against
the refusal of his claim: see R v
Secretary of State for the Home Department, Ex p Saleem
[2001] 1 WLR 443. Judicial review was not
available to the applicants until they became victims of the designation
regimes and their claims were certified and the special adjudicator dismissed
the claims. Accordingly, there was no delay in applying for judicial review.
Nor will there be any detriment to good administration if relief is granted.
Only 13 other cases await the outcome of the appeal: contrast R (Zeqiri) v
Secretary of State for the Home Department [2001] EWCA Civ
342; The Times, 17 May. LORD PHILLIPS
OF WORTH MATRAVERS MR* handed down the following judgment of the court. [1] These appeals arise
out of applications made by three citizens of Pakistan for judicial review of decisions by special
adjudicators dismissing their appeals from removal directions made by the
Secretary of State. The removal orders were consequent upon the refusal of the Secretary
of State to accept that any of the three applicants was entitled to asylum on
the basis that he had a well founded fear of persecution were he to be returned
to Pakistan. Each challenged the decision of the special adjudicator in his
case on the grounds that the decision was irrational. Turner J on 19 January
2001 accepted, as had in the case of Abid Ali been
conceded by the Secretary of State, that the decision of the special
adjudicator in each case was irrational, and remitted each to be reconsidered
by a fresh special [*137] adjudicator. But the
applicants further challenged the procedure by which their appeals had been
heard. The case of each had been certified by the Secretary of State under the provisions
of paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as
substituted by the Asylum and Immigration Act 1996, and the Asylum (Designated
Countries of Destination and Designated Safe Third Countries) Order 1996. The
effect of certification was to subject the applicants to an expedited procedure
which, inter alia, deprived the applicants of any
right of appeal from the special adjudicator. Turner J upheld the claim of each
that, in so far as the order designated Pakistan as a country return to which could justify
certification, it was invalid. The Secretary of State appeals against that
aspect of Turner J’s judgment. [2] Paragraph 5 of
Schedule 2 to the 1993 Act provides: “(1)
This paragraph applies to an appeal by a person on any of the grounds mentioned
in subsections (1) to (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, or be required to leave, the United
Kingdom is one to which—(a) sub-paragraph (2), (3) or (4) below
applies; and (b) sub-paragraph (5) below does not apply. “(2)
This sub-paragraph applies to a claim if the country or territory to which the
appellant is to be sent is designated in an order made by the Secretary of
State by statutory instrument as a country or territory in which it appears to
him that there is in general no serious risk of persecution … “(5)
This sub-paragraph applies to a claim if the evidence adduced in its support
establishes a reasonable likelihood that the appellant has been tortured in the
country or territory to which he is to be sent … “(8)
The first order under this paragraph shall not be made unless a draft of the
order has been laid before and approved by a resolution of each House of
Parliament.” [3] The order in
question was the first order made pursuant to paragraph 5(8) of Schedule 2 to
the Act, as substituted. It provides: “2.
The following countries are designated as ones in which it appears to the
Secretary of State that there is in general no serious risk of persecution: Bulgaria, Cyprus, Ghana, India, Pakistan, Poland, Romania.” This list of countries is known
colloquially as “the White List”. [4] The questions which
we have to determine are: (i) to what extent is it
open to the court to review the validity of the order, having regard to the
fact that it has been approved by the affirmative resolution of each House of
Parliament? (ii) In the light of the answer to (i),
was Turner J correct to hold that the order was invalid? [5] In order that some
flesh may be put on the bare bones of the legal argument, we propose to state
shortly the factual basis of each applicants’ case, although the
particular facts are of no direct relevance to the issues that we have to
determine. [6] Asif
Javed is a member of the Ahmadi
community. He claimed that he had been persecuted on that ground from the age
of 15. His account was that he had first been expelled from school on the
grounds that he had been attempting to explain his Ahmadi
beliefs to fellow pupils. Thereafter he was [*138] harassed by former pupils from the school and
later attacked and severely injured. His attackers informed the police that he
had been the aggressor. He was told that if he wished to avoid arrest and imprisonment
he should renounce his faith. He therefore left the area. Further allegations
were then made that he had been preaching, as a result of which he felt afraid
to return to his home. When he returned for the funeral of his sister, the
police tried to arrest him, but he escaped. Back with his aunt, he was attacked
and wounded by a man with a knife. He was eventually able to leave Pakistan with a passport obtained by his father. His claim
for asylum was based on persecution by non-state agents which the authorities
either tolerated, or against which they were unwilling or unable to offer
protection. [7] The Secretary of
State refused asylum and ordered his removal on the grounds that his account
was not credible. He further stated that although he was aware that
discrimination took place against Ahmadis, in general
the judiciary remained independent and there was no systematic persecution of
religious minorities. The special adjudicator hearing the appeal disbelieved Asif Javed’s account. To support his account that
he was wanted by the police he produced a report which purported to emanate from
a named police station. The British High Commission, on inquiry, suggested that
no such police station existed. The special adjudicator considered that this
undermined Asif Javed’s account. It was subsequently
established that the police station does in fact exist. As already indicated
the Secretary of State has accepted that, on its individual merits, the matter
must be remitted to a fresh special adjudicator to reconsider the evidence. [8] Abid
Ali is a Sunni Muslim. His case was that he was a member of the Pakistan Force
of the Companions of the Prophet, a militant Sunni organisation.
He also claimed membership of the Sipa-e-Sahaba which
opposed the government of Benazir Bhutto. He had been
involved in numerous demonstrations, processions and protests which resulted in
his being convicted and sentenced on a number of occasions. He claimed that he
had been beaten up several times in prison and feared being killed were he to
be returned to Pakistan. The special adjudicator concluded, that so far as
his arrest and imprisonment were concerned, this was the result of his violent
and criminal activity, and that he had not received unreasonable sentences. He
also rejected the submission that the Sunni Muslims, who are in the majority in Pakistan, were subjects of persecution by the minority Shia; further, he concluded that there was no evidence that
the authorities were unable or unwilling to offer protection to the Sunni
Muslims from any attacks by the Shia Muslims. The
special adjudicator accepted Abid Ali’s account
of being beaten, but, despite this, rejected the submission that he had
established a reasonable likelihood that he had been tortured in Pakistan so that sub-paragraph (5) of paragraph 5 of
Schedule 2 to the 1993 Act applied. Turner J concluded that neither the
Secretary of State nor the special adjudicator had given any proper reasons for
finding that sub-paragraph (5) did not apply and accordingly that the
application should succeed. As in the case of Asif Javed, the Secretary of State does not seek to disturb the
judge’s conclusion in this respect. [9] Zulfiqar
Ali claimed to have been a former supporter of the Mohajir
Quami Movement (“the MQM”) which
was opposed to the Pakistan People’s Party. As a result of his association
with the MQM, Zulfiqar Ali claimed that he had been
detained and ill-treated and was forced to join a [*139]
breakaway group known as MQM-H which was used to persecute MQM members. He
feared persecution because of his refusal to co-operate with the army in their
clandestine use of MQM-H. In support of his account, he produced a first
investigation report (“FIR”) naming him as a person against
whom charges were to be brought. He further produced newspaper articles which
identified a person bearing his name as a person who was wanted in connection
with the murders of eight members of the MQM. The murders had, however, been
committed after Zulfiqar Ali had arrived in the [10] The main issue,
common to all three applications before Turner J, was whether or not the order
was valid in so far as it identified Pakistan as a country in respect of which
there was “in general no serious risk of persecution”. This
is the only issue with which we are now concerned. The argument of the
applicants, before Turner J, as before us, was that no reasonable Secretary of
State, directing himself properly to the issues, could have come to the
conclusion that there was in general no serious risk of persecution bearing in
mind in particular (i) what was known about the
position of women in Pakistan and (ii) what was known about the attitude of the
Pakistan authorities towards Ahmadis. It was further
submitted that, whatever might have been the position in 1996 when the order
was made, there was certainly no justification for retaining Pakistan in the
order after the decision of the House of Lords in R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629. We
should record that because of the political situation in Pakistan the Secretary
of State did not in fact certify any cases under the order after October 1999
and that, as a result of the Immigration and Asylum Act 1999, the power to
designate countries on the ground here in question was repealed with effect
from 2 October 2000. [11] Mr Pleming, for the Secretary of
State, has repeated the arguments that were urged on the court below. He has
placed at the forefront of his case the fact that the order attacked has been
approved by each House of Parliament under the affirmative resolution
procedure. He has submitted that binding authority establishes that the court
can only review such an order if it can be shown that the Secretary of State did
not act in good faith, or “had taken leave of his senses”, in
putting it before Parliament. He has further submitted that, whatever the test
that falls to be applied when reviewing the making of the order, the Secretary
of State was entitled to come to the conclusion that there was in general no
serious risk of persecution in Pakistan on the material that was available to him.
Finally, he has submitted that nothing has occurred subsequent to the making of
the order during the period relevant to these applications which has required
the Secretary of State to remove Pakistan from the order. [*140]
[12] Turner J held that
the court had the supervisory power and duty to examine the evidence available
to the Secretary of State at the time that the order was made, and
subsequently, in order to determine whether or not the decision to make and
maintain the designation of Pakistan in the order was lawful. In so doing he embraced
and adapted to the circumstances of the present case the observation of Simon
Brown LJ in R v Secretary of State for
the Home Department, Ex p Turgut [2001] 1 All ER
719, 729: “the court here is hardly less well placed than the Secretary
of State himself to evaluate [the evidence for in-country assessments] once the
relevant material is placed before it.” [13] Having considered
the evidence in relation to the position in Pakistan both of women and of Ahmadis,
Turner J concluded: “I
have been unable to see upon what basis the Secretary of State reached his
initial decision … The decision of Parliament was a political one,
based on a factual proposition determined by the Secretary of State that
Pakistan was a country which satisfied the requirements of paragraph 5(2). In
that, he was, in my judgment plainly wrong.” [14] Before turning to
the argument in more detail, it is convenient to set out the evidence before
the court as to what material was taken into account by the Secretary of State
at the time that he made the draft order and laid it before Parliament and what
criteria he applied. It is also necessary to outline the nature of the debate
on the order in each House of Parliament. Material on Pakistan [15] In his first
statement, dated “5.
To deal with this and other matters, the then Government introduced an Asylum
and Immigration Bill on 29 November 1995 … On the second reading of
the Bill on 11 December 1995, the Secretary of State explained that he proposed
to apply three criteria in deciding whether to designate a country or
territory. (a) The country or territory should be one in which there was in
general no serious risk of persecution; (b) the country or territory should be
one from which a significant number of claims for asylum to the United Kingdom
were made; and (c) a very high proportion of those claims were refused. The
Secretary of State also indicated on that occasion that at that time he
proposed to designate Pakistan and other specified countries … “6.
The Asylum and Immigration Act 1996 received royal assent on “7.
In deciding to designate Pakistan the Secretary of State took into account
information from a wide range of bodies, including diplomatic missions,
international and non-governmental organisations,
including UNHCR and Amnesty International, and press reports. “8.
The country assessment for Pakistan … expressly referred to the position of
both Ahmadis and women: paragraphs 7, 11. I can
confirm that the Secretary of State did consider that the position of women in Pakistan was relevant to the question of designation. He
did not consider that difficulties which women experience in Pakistan were irrelevant, whether because women in Pakistan were thought not to constitute a particular social
group or for any other reason. “9.
The country assessments produced at that time were relatively brief. The
brevity of the documents should not be taken to indicate that the Secretary of
State’s consideration of the situation in Pakistan was equally brief. The Secretary of State gave
very careful and detailed consideration to a large volume of material from a
wide range of sources … “11.
The Secretary of State also had regard to decisions of immigration appellate
authorities and the courts. These had consistently held that Ahmadis are not persecuted per se but that certain
individual Ahmadis may suffer persecution, depending
on their particular circumstances. I refer by way of example to Gulzar Ahmad v Secretary of State for the Home
Department [1990] Imm AR 61, CA and Tahir v Secretary of State for the Home Department
[1994] (IAT No 11032). The Secretary of State was also aware of the decisions
of the Immigration Appeal Tribunal in the cases of Shah and Islam, given on [16] The country
assessment for “7.
Religious freedom “Although
“11.
General human rights situation… “Ahmadis “Presidential
Ordinance XX of “Women’s
issues &147;Pakistan’s
current constitution recognises the equality of men
and women before the law, prohibits sexual discrimination within the civil
service, and grants women the right to participate fully in all activities in
the national arena. The 1979 Hudood Ordinances subordinated
women’s status to that of men. They brought together the laws relating
to theft, prohibition of alcohol and narcotics, ‘Zina’ (rape,
abduction, adultery and fornication) and ‘Qazi’ (false accusation
of Zina). In 1992 it was estimated that 2,000 women
were held in prison under the Hudood Ordinances. In
October 1992, the Sharif government approved an
amendment to the Code of Criminal Procedure that women should not be detained
in police stations overnight and that they should only be interrogated in the
presence of a close male relative. This amendment has yet to be passed by the National
Assembly. Some organisations which aim to improve the
status of women in Pakistan have emerged; various local groups offer legal and
medical advice and assistance. In January 1994 Benazir
Bhutto established the first police station for women, administered exclusively
by women. It remains to be seen whether further measures to improve the
situation of women in Pakistan will follow … “ “Conclusion “In
general, although there are instances of violence towards various sections of
the population there is no evidence of government led persecution of
minorities. Where discrimination or harassment does occur, it emanates from the
actions of individuals or groups at local level.” [17] Also available to
the Secretary of State at the time that he laid the order before Parliament was
a decision of the Immigration Appeal Tribunal, Kaleem Ahmed v Secretary of State for the Home Department (unreported) “Each
case involving Ahmadis must be looked at on an
individual basis. It would in our view be wholly wrong to say that the discriminatory
legislative provisions relating to Ahmadis means that
all Ahmadis can claim asylum under the terms of the
Convention. However, the evidence of the various reports referred to above
which express an overall correct view of the position of Ahmadis
illustrates that Ahmadis [*143]
live in Pakistan as a religious minority who are likely to meet examples of
intolerance, discrimination and sadly at times blatant persecution in their
everyday lives.” [18] After the
applications in their cases had been made, solicitors acting for Abid Ali and Zulfiqar Ali
formally asked the Secretary of State to reconsider certification of Pakistan
in the light, inter alia,of the political situation
in Pakistan, the information available to the Secretary of State about the
treatment of Ahmadis, and the decision of the House
of Lords in R v Immigration Appeal
Tribunal, Ex p Shah [1999] 2 AC 629. [19] Mr Seeney replied on “We
have acknowledged in our assessment that members of the minority groups mentioned
in your letter experience human rights problems, and suffer persecution at the
hands of others. We are of the view however that this does not amount to state
persecution. In general, members of those particular groups are not likely to
face persecution from the present Pakistani government. Following the October
coup the country’s new Chief Executive, General Musharraf,
has openly advocated the need for religious tolerance and has endeavoured to curtail political exploitation of religion.
We are therefore of the view that the government of Pakistan does not actively or systematically persecute
religious minorities.” [20] If this had,
indeed, been the basis upon which the Secretary of State had approached the
question whether or not there was relevant persecution in Pakistan, he would undoubtedly have seriously misdirected himself.
This was recognised by Mr Seeney in a second statement dated “5.
Having reconsidered the wording of my letter of 29 November 1999 to the
representatives acting for Zulfiqar Ali and Abid Ali, I consider that the letter is misleading in that
it might be taken to suggest that the Secretary of State does not recognise persecution by non-state agents as giving rise to
a claim for protection a copy of the instructions to caseworkers which is
circulated to asylum caseworkers to enable them to assess asylum claims and
which I believe accurately reflects the Secretary of State’s approach
to non-state agents of persecution (which itself is derived from the UNHCR
Handbook). Paragraph 8.5 of the instructions is entitled ƟAgents of Persecutionunder the 1951 Refugee Convention and that the
Secretary of State did not regard persecution by non-state agents as relevant
in considering the designation of Pakistan and in keeping such designation
under review. “6.
The Secretary of State recognises that persecutory
acts committed by non-state agents may give rise to a claim for protection
under the 1951 Convention. Attached to my statement … is ’ and
states ‘where seriously discriminatory or other offensive acts are
committed by the local populace they may constitute persecution if they are
knowingly tolerated by the authorities or if the authorities refuse or prove
unable to offer effective protection (Paragraph 65 of the UNHCR Handbook)’
… “7.
My letter of 26 November 1999 had been intended to make clear that, although
certain minority groups may be subjected to acts of ill-treatment by members of
the general populace, the Government of [*144] Pakistan
does not itself engage in such acts and Pakistan is not regarded as a country
where the state is in general unwilling or unable to offer effective protection
to its citizens against such acts. For that reason it is considered to be a
country where there is in general no serious risk of persecution either from
the state itself or from members of the public, either acting with the state’s
sanction or encouragement, or against whose acts the state is in general
unwilling or unable to protect.” [21] Mr Seeney did not in his letter
deal expressly with the import of the decision of the House of Lords in R v Immigration Appeal Tribunal, Ex p Shah
[1999] 2 AC 629. That is a matter to which we shall revert in due course. Parliamentary debate [22] We have been
provided with copies of the Hansard Reports of the debates
on the draft order in both the House of Commons and the House of Lords. [23] The debate in the
House of Commons lasted for approximately an hour and a half. One speaker
described it as “a highly charged and serious debate that concerns us
all” (HC Debates, [24] It was resolved
that the draft order be approved. [25] In the House of
Lords on the following day the debate took place on a motion to resolve that
the House deplored the Government’s proposal to designate certain
countries as subject to the fast-track appeals procedure (HL Debates, 16
October 1996, col 1690). The debate lasted for approximately
two hours and twenty minutes. The motion attacked designation in principle, but
discussion covered conditions in a number of the countries that were proposed
to be included on the White List. Of those, Pakistan received particular attention. There was
discussion about the position of the Ahmadis and of
the Mohajir Quami Movement,
but no mention of the position of women. At the end of the debate the motion was
withdrawn and a motion approving the draft order was then passed. Article 9 of the Bill
of Rights 1689 [26] Article 9 of the
Bill of Rights 1689 (1 Will & Mary, sess 2, c 2) provides:
“That the freedome of speech and debates or
proceedings in Parlyament ought not to be impeached
or questioned in any court or place out of Parlyament.” [27] Mr Pleming’s first submission was that to review
the evidence in order to determine whether the Secretary of State had properly
included [28] In Pepper v Hart [1993] AC 593 the relevant
issue was whether reference to ministerial statements in Parliament, as an aid
to the construction of ambiguous legislation, would contravene article 9. The [*145] House of Lords held that it would not. In the
leading speech, Lord Browne-Wilkinson said, at p 638: “In my judgment, the plain meaning of
article 9, viewed against the historical background in which it was enacted,
was to ensure that Members of Parliament were not subjected to any penalty,
civil or criminal for what they said and were able, contrary to the previous assertions
of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose
to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of
looking at Hansard will not be to construe the words used
by the minister but to give effect to the words used so long as they are clear.
Far from questioning the independence of Parliament and its debates, the courts
would be giving effect to what is said and done there.” [29] Mr Pleming argued that in the
present case the challenge of the propriety of the inclusion of Pakistan in the White List did indeed involve criticising what was said in Parliament and questioning its
debates. Each House of Parliament had concluded that Pakistan should be included in the order after informed
debate and it was constitutionally improper to challenge that conclusion. [30] Mr Pleming buttressed his
submission by reference to the following passage in the advice of the Privy
Council in Prebble v Television New Zealand Ltd [1995] 1
AC 321, 337: “For
these reasons (which are in substance those of the courts below) their
Lordships are of the view that parties to litigation, by whomsoever commenced,
cannot bring into question anything said or done in the House by suggesting
(whether by direct evidence, cross-examination, inference or submission) that
the actions or words were inspired by improper motives or were untrue or misleading.
Such matters lie entirely within the jurisdiction of the House …” [31] Mr Pleming referred us to judicial
observations about the effect of article 9 that were made in the litigation
between Mr Hamilton and Mr Al
Fayed. In Hamilton v Al Fayed [1999]
1 WLR 1569, 1586, after referring to a passage from the judgment of the Privy Council
in Prebble’s case, the Court of Appeal observed: “In
our view this confirms that the vice to which article 9 is directed (so far as
the courts are concerned) is the inhibition of freedom of speech and debate in
Parliament that might flow from any condemnation by the Queen’s courts,
being themselves an arm of government, of anything there said. The position is
quite different when it comes to criticisms by other persons (especially the
media) of what is said in Parliament. Lord Browne-Wilkinson himself drew this
distinction in the passage we have cited from Pepper v Hart [1993] AC 593. The courts could only have legitimate
occasion to criticise anything said or done in parliamentary
proceedings if they were called on to pass judgment on any such proceedings;
but that they clearly cannot and must not do. Nor therefore should they issue
such criticisms on any occasion, for to do so would be gratuitous.” [*146] [32] Mr Pleming combined his
submissions on article 9 with reliance upon “the common law principle
of respect by the courts for decision making by Parliament”. In so
doing he was speaking of what the Privy Council referred to in Prebble’s case [1995] 1 AC 321,
332 as a “wider principle”: “In
addition to article 9 itself, there is a long line of authority which supports
a wider principle, of which article 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as
the courts are concerned they will not allow any challenge to be made to what
is said or done within the walls of Parliament in performance of its
legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard
(1839) 9 Ad & El 1; Bradlaugh v Gossett (1884) 12 QBD 271; Pickin v British Railways Board [1974] AC 765;
Pepper v Hart [1993] AC 593. As
Blackstone said in his Commentaries on the Laws of England, 17th ed (1830), vol 1, p 163: ‘the
whole of the law and custom of Parliament has its original from this one maxim,
“that whatever matter arises concerning either House of Parliament,
ought to be examined, discussed, and adjudged in that House to which it
relates, and not elsewhere.” ’ ” [33] That citation, and
the authorities cited within it, point to the vital, though sometimes
difficult, task in a case such as the present of drawing a distinction between
the functions of Parliament and the functions of the court. Legislation is the
function of Parliament, and an Act of Parliament is immune from scrutiny by the
courts, unless challenged on the ground of conflict with European law.
Subordinate legislation derives its legality from the primary legislation under
which it is made. Primary legislation that requires subordinate legislation to
be approved by each House of Parliament does not thereby transfer from the
courts to the two Houses of Parliament, the role of determining the legality of
the subordinate legislation. In Wade & Forsyth, Administrative Law, 8th ed
(2000), p 854 the authors summarise the position: “In [34] This proposition
is amply supported by authority. In R v Electricity
Comrs, Ex p London Electricity Joint Committee Co
(1920) Ltd [1924] 1 KB 171, 208 Atkin LJ remarked: “I know of no authority which compels me
to hold that a proceeding cannot be a judicial proceeding subject to
prohibition or certiorari because it is subject to confirmation or approval,
even where the approval has to be that of the Houses of Parliament. The
authorities are to the contrary.” [35] Atkin LJ was there considering proceedings prior to an
order being tabled for approval by the two Houses. Subsequent decisions, including R v Secretary of State for the
Environment, Ex p Nottinghamshire County Council [1986] AC 240 and R v Secretary of State for the Environment,
Ex p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521, make it plain that the court can review the legality of subordinate legislation, even where this has been approved by affirmative
resolution of each House of Parliament. [36] In R v Secretary of State for the Environment,
Ex p Greater “a
court does have power to quash an order on the ground that it is ultra vires in the strict sense that it goes beyond the powers conferred
by the statute, even where both Houses have approved it; for otherwise the
statute would be capable of amendment by something which is not an Act of
Parliament. It was also accepted, again in our view correctly, that the court
has power to intervene if a statutory precondition to the laying of the order
was not performed. Thus, an order under the Act could be quashed if the
Secretary of State had omitted one of the stages prescribed by sections 1 to 4;
for the Secretary of State has no power to lay before the House an order which
is not the outcome of the procedure created by the Act. This concession was
extended to a case where a purported compliance with the statutory procedure
was no real compliance at all. Finally, it was conceded that there would be a
power of review if the Secretary of State had misdirected himself as to his
powers or as to the law to be applied to his decision, for he would in such a
case have acted ultra vires the statute.” [37] We consider that
these concessions were rightly made, and Mr Pleming did not suggest that they were not. It follows, so
it seems to us, that the effect of article 9 of the Bill of Rights 1689 and the
“wider principle” of common law must accommodate the right
and the duty of the court to review the legality of subordinate legislation.
The fact that, in the course of debate, the Secretary of State or others make statements
of fact that support the legitimacy of the subordinate legislation, and that
the House thereafter approves the subordinate legislation, cannot render it
unconstitutional for the court to review the material facts and form its own
judgment, even if the result is discordant with statements made in
parliamentary debate. [38] Mr Pleming did not go so far as
to submit that the affirmative resolution of the two Houses precluded judicial
review of the order. His submission was that the critical common issue raised
by the three applicants was one pre-eminently for the Secretary of State and
for Parliament rather [*148] than for the
court. That issue was whether Pakistan was a country in which there was in general no
serious risk of persecution. [39] It was of the
essence of Mr Pleming’s submission that the
issue in question was not an issue of primary fact that went directly to the question
of whether the description of Pakistan as a White List country was permitted under
paragraph 5(2) of Schedule 2 to the Act. Rather it was an issue that required
evaluation of a mass of evidence in order to reach a value judgment. That
evaluation had been carried out by the Secretary of State and affirmed by the
two Houses of Parliament, the members of which brought their own knowledge and
experience to bear. In the circumstances he submitted that it was not proper or
appropriate for the court to examine the evidence in order to perform its own
evaluation. The authorities [40] Mr Pleming relied upon two
decisions of the House of Lords which, he submitted, marked the limit of
judicial intervention where the order of a minister had been considered and
affirmed by one or both Houses of Parliament. They demonstrated, so he
submitted, that, provided the order fell within the terms of the enabling
legislation, intervention was only permissible where the minister had acted in
bad faith, or had acted so irrationally as to appear to have taken leave of his
senses. [41] Mr Drabble for Mr Javed and Mr Blake for Mr Abid Ali and Mr Zulfiqar Ali argued that the
statements made in those decisions turned on their particular facts and did not
preclude the courses adopted in the present case. We turn to consider these
authorities. [42] In issue in R v Secretary of State for the Environment,
Ex p [43] The House of Lords
considered the first ground of attack and concluded that the guidance complied
with the express requirements of the Act. As to the second ground, the other
members of the Committee endorsed the approach set out in the following
passages of the speech of Lord Scarman [1986] AC 240,
247: “The
submission raises an important question as to the limits of judicial review. We
are in the field of public financial administration and we are being asked to
review the exercise by the Secretary of State of an administrative discretion
which inevitably requires a political judgment on his part and which cannot
lead to action by him against a local authority unless that action is first approved
by the House of Commons … My Lords, I think that the courts below were
absolutely [*149] right to decline the
invitation to intervene. I can understand that there may well arise a justiciable issue as to the true construction of the words
of the statute and that, if the Secretary of State has issued guidance which
fails to comply with the requirement of subsection (11A) of section 59 of the
1980 Act the guidance can be quashed. But I cannot accept that it is
constitutionally appropriate, save in very exceptional circumstances, for the
courts to intervene on the ground of ‘unreasonableness’ to
quash guidance framed by the Secretary of State and by necessary implication approved
by the House of Commons, the guidance being concerned with the limits of public
expenditure by local authorities and the incidence of the tax burden as between
taxpayers and ratepayers. Unless and until a statute provides otherwise, or it
is established that the Secretary of State has abused his power, these are
matters of political judgment for him and for the House of Commons. They are not
for the judges or your Lordships’ House in its judicial capacity.” And, at pp 250-251: “The present case raises in acute form the
constitutional problem of the separation of powers between Parliament, the
executive, and the courts. In this case, Parliament has enacted that an
executive power is not to be exercised save with the consent and approval of
one of its Houses. It is true that the framing of the guidance is for the Secretary
of State alone after consultation with local authorities; but he cannot act on
the guidance so as to discriminate between local authorities without reporting
to, and obtaining the approval of, the House of Commons. That House has,
therefore, a role and a responsibility not only at the legislative stage when
the Act was passed but in the action to be taken by the Secretary of State in the
exercise of the power conferred upon him by the legislation. To sum it up, the
levels of public expenditure and the incidence and distribution of taxation are
matters for Parliament, and, within Parliament, especially for the House of
Commons. If Parliament legislates, the courts have their interpretative role:
they must, if called upon to do so, construe the statute. If a minister exercises
a power conferred on him by the legislation, the courts can investigate whether
he has abused his power. But if, as in this case, effect cannot be given to the
Secretary of State’s determination without the consent of the House of
Commons and the House of Commons has consented, it is not open to the courts to
intervene unless the minister and the House must have misconstrued the statute
or the minister has—to put it bluntly—deceived the House. The
courts can properly rule that a minister has acted unlawfully if he has erred
in law as to the limits of his power even when his action has the approval of
the House of Commons, itself acting not legislatively but within the limits set
by a statute. But, if a statute, as in this case, requires the House of Commons
to approve a minister’s decision before he can lawfully enforce it,
and if the action proposed complies with the terms of the statute (as your
Lordships, I understand, are convinced that it does in the present case), it is
not for the judges to say that the action has such unreasonable consequences
that the guidance upon which the action is based and of which the House of
Commons had notice was perverse and must be set aside. For that is a question
of policy for the minister and the Commons, unless there has been bad faith or [*150] misconduct by the minister. Where Parliament
has legislated that the action to be taken by the Secretary of State must,
before it is taken, be approved by the House of Commons, it is no part of the judges’
role to declare that the action proposed is unfair, unless it constitutes an
abuse of power in the sense which I have explained; for Parliament has enacted
that one of its Houses is responsible. Judicial review is a great weapon in the
hands of the judges: but the judges must observe the constitutional limits set
by our parliamentary system upon their exercise of this beneficent power.” [44] These passages
were referred to with approval by Lord Bridge of Harwich in R v Secretary of State for the Environment,
Ex p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521. That appeal also concerned local government finance—in
this instance local authorities were attacking decisions of the Secretary of State
that they should be designated for “community charge capping”.
The decisions were taken pursuant to general proposals embodied in reports which
had been placed before and approved by the House of Commons. Furthermore the
order embodying the individual decisions also required to be approved by
resolution of the House of Commons. [45] The orders were
attacked on the grounds that the principles applied by the Secretary of State
in reaching his decisions contravened the provisions of the enabling statute.
These attacks failed. The decisions were also attacked on the grounds that,
having regard to their economic consequences, they were irrational. In relation
to this attack “Lord
Scarman’s speech commanded the agreement of all members of the Appellate
Committee participating in the decision, of whom I was one. I regard the
opinions expressed in the passages quoted as an accurate formulation of an
important restriction on the scope of judicial review which is precisely in
point in the instant case. There is here no suggestion that the Secretary of
State acted in bad faith or for an improper motive or that his decisions to
designate the appellant authorities or the maximum amounts to which he decided to
limit their budgets were so absurd that he must have taken leave of his senses.
Short of such an extreme challenge, and provided always that the Secretary of
State has acted within the four corners of the Act, I do not believe there is
any room for an attack on the rationality of the Secretary of State’s exercise
of his powers under Part VII of the Act … The restriction which the Nottinghamshire case [1986] AC 240
imposes on the scope of judicial review operates only when the court has first
determined that the ministerial action in question does not contravene the requirements
of the statute, whether express or implied, and only then declares that, since
the statute has conferred a power on the Secretary of State which involves the
formulation and the implementation of national economic policy and which can
only take effect with the approval of the House of Commons, it is not open to
challenge on the grounds of irrationality short of the extremes of bad faith, improper
motive or manifest absurdity. Both the constitutional propriety and the [*151] good sense of this restriction seem to me to
be clear enough. The formulation and the implementation of national economic
policy are matters depending essentially on political judgment. The decisions which
shape them are for politicians to take and it is in the political forum of the
House of Commons that they are properly to be debated and approved or
disapproved on their merits. If the decisions have been taken in good faith
within the four corners of the Act, the merits of the policy underlying the
decisions are not susceptible to review by the courts and the courts would be exceeding
their proper function if they presumed to condemn the policy as unreasonable.” [46] Mr Pleming argued that the courts
were required to adopt the same approach to the question of whether a country
should be designated for the White List as Lord Scarman
and [47] We have already
referred to the unreported judgment of Mustill LJ in R v Secretary of State for the Environment,
Ex p Greater London Council 3 April 1985, which preceded the decision of
the House of Lords in R v Secretary of
State for the Environment, Ex p Nottinghamshire County Council [1986] AC
240, but which was not referred to in
argument or speeches in that case or in Ex
p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521. Mustill LJ considered whether it was
constitutionally permissible judicially to review an order which has been
approved by Parliament on grounds of (i) illegality,
(ii) procedural impropriety and (iii) Wednesbury unreasonableness, adopting the three grounds for judicial
review identified by Lord Diplock in Council of Civil Services Unions v Minister
for the Civil Services [1985] AC 374. He held that review was permissible
on each of the three grounds. Dealing with Wednesbury unreasonableness, he
said: “In
this rather uncertain state of affairs, we think it preferable to tackle the
problem from another angle, by asking this question: can it be inferred that
Parliament, by making an affirmative resolution a condition precedent to the
exercise of the power, has intended to make the House of Commons the sole judge
of whether the decision expressed in the draft order is too unreasonable to be allowed
to stand? After careful consideration, we have come to the conclusion that the
answer, in theory, is No. In our judgment, the right of veto created by section
4(5) is a safeguard addition to and not a substitution for the power to
judicial review. The debate in the House on affirmative resolution and the
investigation by the court of a Wednesbury complaint are of a quite different character and
are directed towards different ends; the two are complementary. Having stated
this answer in point of theory, we continue at once to say that in practice the
grant of judicial review on the grounds of unreasonableness is likely to be
rare, and probably very rare, when the decision is subject to affirmative resolution,
particularly in a field such as the present, where the decision is a matter of
judgment and not of mechanical reasoning and is founded on political and
economic premises which are implicit in the enabling legislation. Nevertheless,
we do not find it possible to say that every application for such relief must
be dismissed out of hand for want of jurisdiction.” [*152] [48] Subsequently, Mustill LJ added the following commentary: “(3)
The test for Wednesbury
unreasonableness is hard to satisfy. The decision must be outrageous or absurd
before the court can intervene. The ‘target area’ is large.
(4) The target area is particularly large where the weight to be given to the
conflicting factors is primarily a matter of ‘political’ and
economic judgment and where a particular political and economic policy is
implicit in the enabling statute itself. The court must be particularly
cautious about intervening in such a case, lest it usurps the proper functions
of the decision maker, the more so when Parliament has entrusted to one of its
Houses an additional supervisory role.” [49] Mr Pleming submitted that the
conclusions of principle of Mustill LJ could not
stand with the subsequent decisions of the House of Lords and must be
disregarded. Counsel for the applicants did not accept this and nor do we. The
question that Lord Scarman and [50] We would endorse
the comments made in respect of the decisions in question by Auld LJ in O’Connor v Chief Adjudication
Officer [1999] ELR 209, 220-221: “Irrationality
is a separate ground for challenging subsidiary legislation, and is not characterised by or confined to a minister’s deceit
of Parliament or having otherwise acted in bad faith. That means irrationality
in the Wednesbury
sense. Counsel have referred to the difficult notion of ‘extreme’
irrationality sometimes suggested as necessary before a court can strike down subsidiary
legislation subject to parliamentary scrutiny, citing Lord Scarman
in R v Secretary of State for the
Environment, Ex p Nottinghamshire County Council [1986] AC 240. He spoke,
at p 247g, of ‘… the consequences … [being] so
absurd that … [the Secretary of State] must have taken leave of his
senses’, a form of words with which the other members of the Appellate
Committee agreed. They also referred to Lord Bridge’s reference in R v Secretary of State for the Environment,
Ex p Hammersmith and Fulham London Borough Council
[1991] 1 AC 521, 597f-g, to ‘manifest absurdity’. It is wrong
to deduce from those dicta a notion of ‘extreme’ irrationality.
Good old Wednesbury
irrationality is about as extreme a form of irrationality as there is. Perhaps
the thinking prompting the notion is that in cases where the minister has acted
after reference to Parliament, usually by way of the affirmative or [*153] negative resolution procedure, there is a
heavy evidential onus on a claimant for judicial review to establish the
irrationality of a decision which may owe much to political, social and
economic considerations in the underlying enabling legislation. Often the claimant
will not be in a position to put before the court all the relevant material
bearing on legislative and executive policy behind an instrument which would
enable it with confidence to stigmatise the policy as
irrational. Often too, the court, however well informed in a factual way, may
be reluctant to form a view on the rationality of a policy based on political,
social andor economic considerations outside its
normal competence. That seems to have been the approach of Mustill
LJ [in R v Secretary of State for the Environment,
Ex p Greater [51] For these reasons
we reject Mr Pleming’s submission that there
is a principle of law which circumscribes the extent to which the court can review
an order that has been approved by both Houses of Parliament under the
affirmative resolution procedure. There remains, however, a lesser issue as to
the manner in which the court should approach the review in the circumstances
of this case. [52] In R v Ministry of Defence,
Ex p Smith [1996] QB 517 Sir Thomas Bingham MR gave guidance, since often
invoked, on the approach of the court to judicial review where human rights were
in play. He approved, at p 554, the following proposition advanced by David Pannick QC in argument: “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 with 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.” [53] In R v Secretary of State for the Home
Department, Ex p Turgut [2001] 1 All ER 719,
where article 3 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms was in play, Simon Brown LJ referred to Sir Thomas
Bingham MR’s guidance in R v Ministry
of Defence, Ex p Smith [1996] QB 517, and to Strasbourg
jurisprudence. In a passage, cited and applied by Turner J in the present case,
he explained his approach to reviewing the evidence, at p 729: “I
therefore conclude that the domestic court’s obligation on an irrationality
challenge in an article 3 case is to subject the Secretary of State’s decision
to rigorous examination, and this it does by considering the underlying factual
material for itself to see whether or not it compels a different conclusion to
that arrived at by the Secretary of State. Only if it does will the challenge succeed. “All
that said, however, this is not an area in which the court will pay any
especial deference to the Secretary of State’s conclusion on the
facts. In the first place, the human right involved here—the right not
to be exposed to a real risk of article 3 ill-treatment—is both
absolute and fundamental: it is not a qualified right requiring a balance to be
struck [*154] with some competing social need.
Secondly, the court here is hardly less well placed than the Secretary of State
himself to evaluate the risk once the relevant material is placed before it.
Thirdly, whilst I would reject the applicant’s contention that the
Secretary of State has knowingly misrepresented the evidence or shut his eyes
to the true position, we must, I think, recognise at
least the possibility that he has (even if unconsciously) tended to depreciate the
evidence of risk and, throughout the protracted decision-making process, may
have tended also to rationalise the further material adduced
so as to maintain his pre-existing stance rather than reassess the position
with an open mind. In circumstances such as these, what has been called the
‘discretionary area of judgment’—the area of
judgment within which the court should defer to the Secretary of State as the
person primarily entrusted with the decision on the applicant’s removal
(see Lord Hope of Craighead’s speech in R v Director of Public Prosecutions, Ex p Kebilene
[2000] 2 AC 326, 380-381)—is a decidedly narrow one.” [54] Mr Pleming submitted that there
was no justification in the present case for subjecting the Secretary of State’s
decision to particularly rigorous scrutiny in the manner adopted in R v Ministry of Defence,
Ex p Smith [1996] QB 517 and R v
Secretary of State for the Home Department, Ex p Turgut
[2001] 1 All ER 719. With this submission we agree. Human rights were not put
in issue by the accelerated procedure that was adopted in relation to
applicants from countries on the White List. Nor, as we shall explain, do we
consider the “discretionary area of judgment” to be a
particularly narrow one. The
approach to judicial review [55] The relevant
provisions of the 1993 Act, set out in paragraph 2 above, empowered the
Secretary of State to apply the accelerated procedure in relation to applicants
resisting being sent to a country or territory designated in an order as one
“in which it appears to him that there is in general no serious risk
of persecution”. The Secretary of State did not argue that the words
“it appears to him that” empowered him to apply a purely
subjective approach to designation; such an argument would have been untenable:
see Secretary of State for Education and
Science v Tameside Metropolitan Borough Council [1977]
AC 1014, 1047 per Lord Wilberforce. The Act only entitled the Home Secretary to
designate countries or territories in respect of which the evidence available
to him was such as to enable him rationally to conclude that there was
“in general no serious risk of persecution”. [56] Although rational
judgment or evaluation was called for from the Secretary of State, what had to
be evaluated was the existence of a state of affairs. Whether that state of
affairs pertained was a question of fact. If he concluded that Pakistan was a country in which there was in general no
serious risk of persecution, the Secretary of State then had to consider a
further question which was essentially one of policy: should he designate Pakistan? [57] Thus, on analysis,
the challenge made by the applicants to the inclusion of Pakistan in the order was to its legality rather than to its
rationality. However, the language defining the state of affairs that had to [*155] exist before a country could be designated was
imprecise. Whether there was in general a serious risk of persecution was a
question which might give rise to a genuine difference of opinion on the part
of two rational observers of the same evidence. A judicial review of the Secretary
of State’s conclusion needed to have regard to that considerable
margin of appreciation. There was no question here of conducting a rigorous
examination that required the Secretary of State to justify his conclusion. If
the applicants were to succeed in showing that the designation of Pakistan was
illegal, they had to demonstrate that the evidence clearly established that
there was a serious risk of persecution in Pakistan and that this was a state
of affairs that was a general feature in that country. For a risk to be serious
it would have to affect a significant number of the populace. [58] It would not be
right to conclude that, by approving the order, each House of Parliament
verified that [59] It is time to turn
to the evidence to see whether Turner J was correct in holding that it was not
capable of leading to a rational conclusion that Pakistan was a country in which there was, in general, no
serious risk of persecution. Evidence of persecution
in The position of women [60] Article 1A(2) of
the Geneva Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906)
defines a refugee as a person who “owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country …” [61] An immigrant to
the United Kingdom who falls within that definition is entitled to challenge an
administrative decision requiring him or her to leave the United Kingdom on the
ground that this is contrary to the United Kingdom’s obligation under
the Convention. [62] The appeals to the
House of Lords in R v Immigration Appeal Tribunal,
Ex p Shah [1999] 2 AC 629 raised the question of whether the two
appellants, who were both married women who had come to England from Pakistan
to seek asylum, fell within the Convention definition of a refugee. [*156] Each claimed that,
having been abandoned by her husband, she would, if she returned to Pakistan, suffer persecution in the form of accusations of
sexual misconduct leading to physical abuse, and possibly even stoning to death
under Sharia law, and that the authorities would do nothing
to protect them. The Secretary of State contended that they did not fall within
the definition of a refugee under the Convention because their fear of being
persecuted was not “for reasons of race, religion, nationality,
membership of a particular social group or political opinion”. The
majority in the House of Lords held that in Pakistan women constituted a
“particular social group”, that women were discriminated against
as a group in matters of fundamental human rights because the state gave them
no protection as they were perceived as not being entitled to the same human
rights as men and that the applicants’ well founded fear of
persecution which was sanctioned or tolerated by the state was for reasons of
membership of a particular social group, i e women,
so that they were entitled to asylum under the Convention. [63] The Secretary of
State now accepts, as he is bound to, that women in Pakistan form a “particular social group”
for the purposes of the Convention. He has also accepted in these proceedings
the accuracy of the findings of fact that formed the basis of the House of
Lords decision in R v Immigration Appeal
Tribunal, Ex p Shah . This is an appropriate concession as the evidence
before the House of Lords about conditions in Pakistan was evidence that was available to inform the Secretary
of State when deciding whether or not he could properly include Pakistan on the White List in the order; and the Secretary
of State made no challenge to that evidence. [64] It is the
Secretary of State’s submission that in R v Immigration Appeal Tribunal, Ex p Shah the House of Lords
found that there was, in general, discrimination against women in Pakistan but did not find that there was, in general, a
serious risk of the persecution of women. The two are not, of course, the same
thing. The appeal to the House of Lords concerned two women, each of whom
alleged that she had a well founded fear of persecution if she returned to Pakistan by reason of her particular personal
circumstances. The majority of the House found that the persecution fell within
the terms of the Convention because, as members of a particular social group,
namely women, they were subject to discrimination on the part of the state
which meant that they would not be protected against persecution. It did not
necessarily follow that the risk faced by the two women of persecution
reflected a general risk of persecution of women in Pakistan even if discrimination against women in Pakistan was a general feature. We are, however, in no doubt
that the evidence which led the House of Lords to find that there was, in
general, discrimination against women in Pakistan also led them to find that there was in general a
risk of persecution of women in Pakistan. Nor are we in any doubt that this was a serious
risk. The evidence that founded the conclusion that women were, in general, subject
to discrimination in Pakistan was, in large measure, evidence of failure to
protect them against persecution. The position was illustrative of a statement
by McHugh J in A v Minister for Immigration
and Ethnic Affairs (1997) 190 CLR 225, 264, which was quoted by Lord Steyn in his speech [1999] 2 AC 629, 645: “Nevertheless,
while persecutory conduct cannot define the social group, the actions of the
persecutors may serve to identify or even cause [*157]
the creation of a particular social group in society. Left-handed men are not a
particular social group. But, if they were persecuted because they were
left-handed, they would no doubt quickly become recognisable
in their society as a particular social group. Their persecution for being
left-handed would create a public perception that they were a particular social
group. But it would be the attribute of being left-handed and not the
persecutory acts that would identify them as a particular social group.” A few quotations from
the speeches in R v Immigration Appeal
Tribunal, Ex p Shah [1999] 2 AC 629 will demonstrate the point. Lord Steyn said, at p 635: “Generalisations
about the position of women in particular countries are out of place in regard
to issues of refugee status. Everything depends on the evidence and findings of
fact in the particular case. On the findings of fact and unchallenged evidence
in the present case, the position of women in Pakistan is as follows. Notwithstanding a constitutional
guarantee against discrimination on the grounds of sex a woman’s place
in society in [65] The emphasis in
this passage from the speech of Lord Steyn is ours.
Lord Steyn then quoted evidence in a report of
Amnesty International dated 6 December 1995 which stated that women in Pakistan
were often held under the Zina Ordinance for many
years although no evidence was ever produced that they had committed any
offence, that men frequently brought groundless charges against their former
wives, their daughters and their sisters and that most women remained in gaol for two to three years before their cases were
decided, often on the basis of no evidence of any offence. [66] Lord Hoffmann
began his speech as follows, at p 647: “My
Lords, in Later he added, at p
653: “I
turn, therefore, to the question of causation. What is the reason for the
persecution which the appellants fear? Here it is important to notice that it
is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed
against them as individuals. Secondly, there is the inability or unwillingness
of the state to do anything to protect them. There is nothing personal about
this. The evidence was that the state would not assist them because they were
women. It denied them a protection against violence which it would have given
to men. “These
two elements have to be combined to constitute persecution within the meaning
of the Convention. As the Gender Guidelines for the Determination of Asylum
Claims in the [67] Lord Hope of
Craighead stated, at p 658: “The
unchallenged evidence in this case shows that women are discriminated against
in [68] Earlier in his
speech, Lord Hope made it plain that persecution was not synonymous with
discrimination. It is equally plain, however, that the evidence to which he
referred when speaking of the nature and scale of discrimination against women
in [69] The speeches in R v Immigration Appeal Tribunal, Ex p Shah
provide a convenient summary of the effect of a substantial body of evidence
that was before the House of Lords and which, it is reasonable to assume, was
available to the Secretary of State. We have noted that Mr
Seeney in his witness statement of “The
country assessments produced at that time were relatively brief. The brevity of
the documents should not be taken to indicate that the Secretary of State’s
consideration of the situation in Pakistan was equally brief. The Secretary of State gave
very careful and detailed consideration to a large volume of material from a
wide range of sources.” [70] Earlier in his
statement, Mr Seeney
commented: “I
can confirm that the Secretary of State did consider that the position of women
in [71] While it is true
that the House of Lords was not directly concerned with the question of whether
women in Pakistan were in general at serious risk of persecution, we are in no
doubt that their findings demonstrated that among women in Pakistan there was
in general a serious risk of persecution. That risk was highlighted by much
more detailed accounts of violence to women in respect of which the state
provided no protection or redress in subsequent updated assessments of the
position in [72] Mr Seeney states in his witness
statement: “The
Secretary of State has also given careful consideration to the implications of
the decision of the House of Lords in R v
Immigration Appeal Tribunal, Ex p Shah. The Secretary of State regards that
case as establishing that, on the evidence presented by the two appellants,
women in [73] No more detailed
explanation is provided of the consideration given by the Secretary of State to
the position of women in Pakistan. There is no explanation
as to how he was able to conclude, on the material before him, that there was
in general no serious risk of persecution in Pakistan. Had he applied the correct test to that evidence
we do not consider that he could reasonably have reached this conclusion. Ahmadis [74] We have referred
to the short summary of the position of Ahmadis in Pakistan in the country assessment referred to by Mr Seeney. Mr
Seeney stated that the Secretary of State also had
regard to decisions of the immigration appellate authorities and the courts:
“These had consistently held that Ahmadis
are not persecuted per se but that certain individual Ahmadis
may suffer persecution, depending on their particular circumstances.” This
is not entirely accurate. [75] In Kaleem Ahmed v Secretary of State for the Home
Department [76] We have set out
the most material part of that judgment at paragraph 17 above—it
paints a bleaker picture than Mr Seeney’s summary,
but, had the evidence in relation to Ahmadis stood on
its own, we would not have found it incompatible with the Secretary of State’s
conclusion that there was in general no serious risk of persecution in
Pakistan. It is, however, a factor that, when considered together with the
position of women, adds weight to our conclusion that the Secretary of State’s
inclusion of [77] For the reasons
that we have given, Turner J was correct to rule that the inclusion of Pakistan in the countries designated in the order was
unlawful. The relief granted by Turner J included the following: “(1)
A declaration that the Secretary of State for the Home Department erred in law
in including Pakistan on the list of countries designated as ones in which it
appears to the Secretary of State that there is in general no serious risk of
persecution under paragraph 2 of the Asylum (Designated Countries of
Destination and Designated Safe Third Countries) Order 1996. (2) A declaration
that the Secretary of State erred in law in (a) certifying pursuant to the
Asylum and Immigration Act 1993, Schedule 2, paragraph 5(1) and as amended by
the Asylum and Immigration Act 1996 in each of the cases before the court that
paragraph 5(2) applied to the claim … (b) maintaining such
certification up to and beyond the date of the determination by the special
adjudicator of the asylum appeal of each claimant. (3) An order quashing the
certificate referred to in paragraph 2 above in the case of each claimant.” [78] The Secretary of
State has submitted that we should not, regardless of our decision on the
merits of the appeal, confirm the order of this relief. There was technical
delay on the part of the applicants in applying for judicial review. The
Designation Order was made on [79] We are told that
about 6,000 Pakistani asylum claims were certified and dealt with under the
accelerated procedure. Of these some 13 are subject to applications for
judicial review, which are awaiting the result of this hearing. Those do not
prove a significant administration burden. It is suggested that, if relief is
granted to the three applicants, this may stimulate some of the other 6,000,
who are, on any footing, long out of time to make applications for permission
to apply for judicial reviews, thereby delaying other immigration cases. This
submission is speculative and we do not consider it to afford a good reason for
refusing the applicants the relief to which they would otherwise be entitled. [80] Accordingly we shall
dismiss this appeal and hear counsel as to the precise form of our order. Appeal dismissed. [1] Asylum and Immigration Appeals Act
1993, Sch. 2, para 5, as
substituted: see post, para 2. [2] Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996, art 2: see post, para 3. |