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

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2

Friday, 6th November 1998

Before: LORD JUSTICE BROOKE and MR JUSTICE SEDLEY

REGINA-v-THE SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE GASHI

MR MS GILL (Instructed by Glazer Delmar, Peckham, London SE15 4TZ) appeared on behalf of the Applicant.

MISS L GIOVANNETTI (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

LORD JUSTICE BROOKE:

This is an application by Besnik Gashi for judicial review of a decision given by the Secretary of State for the Home Department, made on 16th March 1998 and given to him on 7th April 1998, to issue a certificate under Section 2 of the Asylum and Immigration Act 1996 ("the 1996 Act") authorising his removal to Germany, and a consequential decision by an Immigration Officer, also dated 7th April 1998, refusing him leave to enter and cancelling his earlier grant of leave to enter, and setting removal directions.

Section 2 of the 1996 Act is intended, as Lord Woolf MR pointed out in ex p Iyadurai [1998] INLR 472, 475, to enable the Secretary of State to remove expeditiously from this country claimants for asylum who have arrived in this country from a safe country.

Section 2(1)(a) of the Act provides that the Secretary of State may remove an asylum claimant from the United Kingdom if:

"The Secretary of State has certified that in his opinion the conditions mentioned in subsection (2) are fulfilled."

The relevant conditions set out in Section 2(2) are:

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

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

(c)  that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention [that is, the Geneva Convention for the Protection of Refugees 1951]."

The dispute in this case, as in ex p Iyadurai, revolves around condition (c). This country is currently adopting a policy of not sending Kosovan ethnic Albanians back to Kosovo, and the United Nations High Commission for Refugees ("UNHCR") has since March 1998 been advising Governments not to return unsuccessful Kosovan asylum seekers to the Federal Republic of Yugoslavia ("FRY"). Notwithstanding this advice, the Government of Germany has indicated that a formal ban on all such deportations is out of the question, and when these proceedings were commenced in mid-April, eight of the 16 federal German states were still sending asylum-seekers back to Kosovo. The other eight were adopting a "wait and see" policy.

Mr Gashi is now aged 30. He is an ethnic Albanian refugee from the Kosovo region of FRY. He fled from his country and travelled over land to Germany two years ago, on 7th October 1996, where he claimed asylum immediately. Although his asylum application was dismissed later that month, and he received notice of the dismissal of his appeal in June 1997, he stayed in Germany until December 1997, with a grant of temporary admission being made in his favour from month to month, until on 1st December 1997 he received notification that he was required to leave Germany by 1st January 1998 at the very latest. Since he did not wish to return to FRY, where the German authorities intended to send him, he came to this country instead, arriving at Waterloo International station on 22nd December 1997. He immediately claimed asylum, and what is called a Dublin Screening Interview was conducted. He was then granted temporary admission. He did not disclose to the immigration authorities at Waterloo that he had already been in Germany and had claimed asylum there.

On 18th February 1998 the Secretary of State made a formal transfer of responsibility request to the German authorities pursuant to the provisions of the Dublin Convention, and the German authorities duly accepted responsibility on 8th March 1998. On 16th March the Secretary of State signed the certificate under Section 2 of the 1996 Act which is impugned in these proceedings, and on 7th April Mr Gashi was told that the Secretary of State had refused his claim for asylum without considering its substance pursuant to Rule 345 of HC 395 (as amended) and had certified that the conditions in Section 2(2) of the 1996 Act were satisfied. Removal Directions were set for 14th April 1998, but these proceedings were then commenced, and on 8th June 1998 Sedley J granted the applicant leave to apply for judicial review.

Evidence has been given to the court in response to Mr Gashi's application by Mr Taylor, who is in charge of the Third Country Unit of the Asylum Directorate in the Home Office. The main function of this directorate is to determine whether to issue Section 2 certificates on behalf of the Secretary of State. Mr Taylor tells us that the Secretary of State has done a great deal of work to familiarise himself with German law and practice in relation to asylum-seekers. This is an ongoing task, because it is appreciated that there is a need to remain informed about any changes in German law and practice generally, and also in relation to the German response to specific developments in countries from which people may be seeking asylum.

The Directorate's starting point is that Germany is generally considered a safe third country. It is a signatory to the 1951 Geneva Convention and its 1967 Protocol, and the Secretary of State considers that it has reaffirmed its commitment to abide by its international obligations in a number of other international agreements, including the 1995 Resolution of the European Union on Minimum Guarantees for Asylum Procedures. Germany is regarded as a highly developed Western European country with a long track record of providing protection to refugees. Its recognition rate for asylum seekers is said to compare favourably with that recorded in many other European countries. One of the sources of the Secretary of State's knowledge of relevant German law and practice is the chapter on Germany in a book called "A Summary Description of Asylum Procedures in Northern Europe, North America and Australia."

Mr Taylor tells us that the Secretary of State is satisfied that German laws and procedures make proper provision for handling asylum applications within the requirements of the Convention, and that these procedures are duly applied in practice. He is not aware of any substantive evidence that the German authorities act in breach of these laws and procedures. On the contrary, he does not know of a single instance where a Special Adjudicator has expressed concern about the standard of consideration of substantive asylum applications in Germany, and the courts in this country have consistently rejected challenges to the Secretary of State's view that Germany is safe, both in relation to specific criticisms (such as the standard of proof used in German cases) and generally.

While the Secretary of State is aware that in 1996 a division of the Immigration Appeal Tribunal considered that ethnic Albanians were at risk in Kosovo, he has taken the view that this was a finding of fact on the evidence before that Tribunal at the date of that hearing, and that it should not be treated as having any general application of a binding nature. In any event, he considers that it is open to different states to reach different conclusions as to whether or not the treatment and circumstances of an individual asylum-seeker amounts to persecution within the meaning of the Convention.

The Secretary of State has been monitoring the situation in Kosovo on a continuing basis, and he is aware that the German authorities are doing likewise. He was satisfied in early August 1998, the date of Mr Taylor's affirmation, that the situation in Kosovo was then such that the view could be reasonably held that the Serbs were targeting the Kosovo Liberation Army ("KLA"), both in terms of individuals known to be involved in it, and in terms of the areas known to be KLA strongholds. This approach would be consistent with that adopted by many signatory states, both in relation to Kosovo and to other trouble spots round the world, where members of a civilian population are displaced by an armed conflict. The question as to when and whether these circumstances amounted to persecution of any particular individual or group was a matter of degree and judgment on the facts of the particular case.

We were told that it is clear to the Secretary of State that the general population of Kosovo is suffering the effects of living in the most difficult circumstances, but that he is satisfied that this fact could rationally be said to warrant giving careful consideration to the grant of status to remain on humanitarian grounds, rather than ^ qualifying an entire population for asylum status. He is aware that the German authorities continue to consider the cases of Kosovan asylum-seekers on a case by case basis, and he is satisfied that this approach is one that is open to a signatory state without constituting a breach of the Convention.

More recently, he had been told by the Federal Ministry of the Interior in Germany that although there had been no decision to issue a final stop to deportations, the individual Bundeslander had essentially stopped repatriations to Kosovo, and were allowing those who have not been granted refugee status to remain in Germany on humanitarian grounds, albeit without the grant of asylum. The only Kosovans currently being deported from Germany were those who have been convicted of criminal offences, whose return would not be contrary to the 1951 Convention or to any of the provisions of the German Aliens Act. The Secretary of State is satisfied that their removal from Germany would not constitute a breach of the Convention, so long as proper consideration had been given to their asylum claims. He is also satisfied that those who were rejected some time in the past can renew their asylum claims prior to deportation on the basis of the current situation in Kosovo.

In summary, therefore, the Secretary of State, we were told, was satisfied in February 1998, and was still satisfied on the information available to him in August 1998, that Germany would comply with its Convention obligations.

The Applicant's solicitor had made an affirmation in support of this application in which she had referred conveniently to the very large volume of information about German practice which was before Collins J, and indeed the Court of Appeal in the case of ex parte Demiraj and Ethemi [1998] Imm AR 147 before the Court of Appeal in the case of ex parte Iyadurai [1998] INLR 472. The general effect of that evidence, which Mr Gill invited the Court to study and which I have considered with care, was that on a large number of occasions in 1996 and 1997 decisions were taken in Germany to return Kosovo Albanians, following a refusal of recognition status, back to Kosovo and accounts were given of the untoward treatment of a number of them when they returned to Kosovo. The evidence also describes vividly the distressing state of affairs in parts of Kosovo and the treatment of ethnic Albanians there. The thrust of Mr Gill's submissions on that past evidence was that given that since March 1998 the UNHCR had been requesting states not to return Kosovo Albanians to FRY, and that neither this country nor other European countries were doing so, a big question mark was raised over the propriety of the practice in Germany so far as compliance with the 1951 Convention was concerned.

After Mr Taylor's affirmation had been filed Mr Gashi's solicitor furnished evidence in response to it of four different types. The first was in the form of a letter from Mr Kohler, a representative of a German refugee organisation, written in August 1998, in which he set out what he perceived to be the then current position in Germany. The second was a letter written by a Refuge Co-ordinator employed in Germany by Amnesty International a month later. The third was a letter from a UNHCR representative in August 1998, to which are appended some critical comments by Mr John Hodgson, an English expert on affairs in Kosovo, who gave evidence for the successful applicants in the 1996 Tribunal case. Finally, we have been supplied with a copy of an August 1998 UNHCR Position Paper on the Treatment of Asylum-Seekers from Kosovo.

Mr Kohler said that although German courts had consistently rejected the assumption that group persecution was being practised in Kosovo, there had recently been a range of "fast procedure" decisions in administrative courts to the effect that in the new situation there the possibility of group persecution could not be excluded for the time being. Mr Kohler believed, however, that the higher courts would be likely to hold that whether or not there was group persecution in the war areas, an internal flight alternative was available, whether in Pristina or Montenegro, or perhaps even in the rest of FRY. The decisive question in this context would be whether a safe haven could be reached, following a forcible return to Belgrade or Pristina. He said that the German Ministry of the Interior was now in favour of buffer camps in Albania, Macedonia and Italia, and that the German Foreign Ministry was contending that Montenegro, at least, offered an internal flight alternative.

Mr Kohler said that the administrative courts would for the most part distinguish between asylum-seekers living in the war areas and those who could easily live in areas not yet affected by the war, although in the past recognition of refugee status had sometimes been given on an individual basis. On the information available to him, the recognition rate for Kosovan Albanians was much lower than 10%, and that for renewed applications between nil and 0.5%.

Mr Kohler said that some of the federal states were still practising large scale forcible return, while some others had stopped forcible return for those who had not committed criminal acts. Because of technical problems such as the lack of co-operation from the Yugoslav authorities and a lack of flights, other federal states and aliens authorities were placed in a position that they could not effect forcible returns.

Mr van der Vaart, a representative of UNHCR, said in a letter dated 20th August 1998 to the applicants' solicitor that the Federal Office in Germany had initiated revocation procedures in certain cases involving previously recognised Kosovo Albanians in the type of case in which recognition would not currently be granted. He mentioned six reasons why revocation was being sought. Inter alia, no group persecution was assumed to exist with respect to persons of Roma and Sinti ethnic origin, mere membership (as opposed to politically active membership) of the LDK did not lead to persecution by the Serb authorities, political activities in exile (except for those who were already politically exposed in Kosovo) did not apparently form a ground for persecution on return, and following an Amnesty law, draft evaders and deserters were no linger considered to be in danger of persecution on return.

In a later letter, dated 29th October 1998, another representative of UNHCR, Mr Louis Gentile, indicated that the German position on these matters was in line with the UNHCR position.

Two other reasons for seeking revocation, on which Mr Hodgson took issue in his letter, were expressed in these terms:

"1. Although it is acknowledged that Kosovo Albanians are widely subjected to acts of repression by the Serb authorities, persecutory measures are primarily directed towards politically active persons. Not all measures such as house searches, interrogations or arrest of Kosovo Albanians are considered as asylum-relevant.

3.   In some cases it is argued that the disturbances that occur in Kosovo since March of this year are limited to specific areas and it is assumed that outside these areas asylum-seekers could have found an internal flight alternative, including Montenegro where Kosovo Albanians are not subject to persecutory or serious discriminatory measures."

In his letter dated 5th October 1998 Mr Hodgson said that the situation in Kosovo had deteriorated in the extreme since 20th August. His letter includes the following passages:

"1.  If it was ever the case that the persecutions of the Serb authorities 'are primarily directed towards politically active persons', this is certainly no longer true. We have seen on our television screens scenes of the shelling and devastation of entire communities. According to the data of the Council for the Defence of Human Right and Freedoms in Prishtina, Council estimates that 450,000 people have been displaced, and 150,000 people are living in the open air. The German Government presumably formed its view on the situation in Kosovo before the escalation of the conflict in March this year. Even outside the combat zones, arrests of Albanians have increased dramatically, and there have been widespread allegations of torture and deaths in police custody. The Council for the Defence of Human Rights records 1,700 people arrested.

3.   About one-half of the area of Kosovo is at present the scene of actual fighting. Most of the estimated 450,000 displaced people have sought refuge in other parts of Kosovo. This does not mean that they are safe, because the Serbian military offensive is always spreading into new areas, and they are also subject to police harassment and rights abuses outside the combat zones.

According to the Council for the Defence of Human Rights, 90,000 refugees have 'fled internally' to Montenegro, travelling many miles on foot through mountainous terrain. Most of these have sought refuge in the ethnically Albanian areas of Plava and Ulcinj. But even here many thousands have been left out in the open air, and the Montenegran authorities have also shipped several thousand across the border into the Republic of Albania by bus.

Although so many thousands of people in Kosovo are without a roof over their heads, none have 'fled internally' to Serbia proper, which suggests that Serbia cannot be considered a place of safety. There is substantial evidence of the dangers to which ethnic Albanians are exposed even travelling through Serbia. In one of its weekly reports, the Council for the Defence of Human Rights described the arrest in Prokuplje on 23 July of an entire busload of 53 Albanian migrant workers who were travelling from Slovenia to their homes in Kosovo. The passengers had their money confiscated, and were arrested on charges of 'terrorism'. They have not yet been released and have not appeared on trial."

In a letter written the following day Mr Grenz, who is an Amnesty International refugee co-ordinator, confirmed that in June 1998 the ministers of the interior of the 16 federal states and the German Federal Government declared a halt to the return of Kosovo Albanian rejected asylum seekers, apart from those who had committed a "criminal act". Although the existence and scope of this exception caused controversy, the return of criminals ended when the EU's decision to ban flights by the Yugoslav Airline JAT to member states came into effect on 8th September 1998. In his letter Mr Grenz quoted figures of the very low proportion of Kosovo Albanian asylum-seekers granted recognition in Germany during 1996, 1997 and the first six months of 1998, and he also described the poor prospects of success on second asylum applications.

Finally, the UNHCR Position Paper gives a clear picture of the plight of the Kosovo Albanians at the end of August 1998. Paragraph 3 of the paper reads:

"Persons fleeing the conflict in Kosovo who make asylum claims should, like all other asylum-seekers, be afforded access to regular refugee status determination procedures, for consideration of their claims on a case- by-case basis. In considering such claims, it should be borne in mind that the current displacement appears in large measure to be driven by the threat of serious harm which is often meted out on the basis of ethnicity and imputed political opinion. In such circumstances, it may reasonably be assumed that important numbers of those displaced by the current conflict could have a well-founded fear of persecution for 1951 Convention reasons."

Paragraph 5 of that paper identifies a number of groups who are at particular risk of persecution. In paragraph 9 the UNHCR recites, as a matter of history, that:

"On 9th March 1998, UNHCR urged European Governments to stop sending rejected asylum-seekers from Kosovo back to the Federal Republic of Yugoslavia on humanitarian grounds, until the situation in the province had stabilised. In late April, UNHCR reiterated its request, stating that in 'the present explosive climate, UNHCR (was) convinced that the return of rejected asylum-seekers from European States entails security risks for those being returned and could well expose them to treatment proscribed in international human rights instruments.' The Office therefore recommended a temporary ban on deportation, until there was 'clear and marked progress towards dialogue and tensions have subsided."

In paragraphs 12 to 15 the UNHCR refers to the subject of safety within the Federal Republic of Yugoslavia.

It describes it as "essentially a practical, factual question" and, for the reasons set out in that part of the paper, it sets out its own opinion the "finding safety on any durable basis within the Federal Republic of Yugoslavia cannot be considered an option."

There have been a few recent decisions in this country relating to asylum-seekers from Kosovo, or to the practice of the German authorities in relation to asylum-seekers. In Gashi and Nikshiqir v Secretary of State [1997] INLR 96 the Immigration Appeal Tribunal held in July 1996 that two ethnic Albanians from Kosovo were entitled to be recognised as refugees as they had a well-founded fear of persecution on grounds of their ethnicity. In R v Secretary of State for the Home Department ex p Demiraj and Ethemi [1998] Imm AR 147 the question arose whether Germany was a safe third country to which ethnic Albanians from Kosovo might be sent. On 29th January 1998 Collins J refused to quash a certificate by the Secretary of State to the effect that it was. Although the unsuccessful applicants appealed to the Court of Appeal, the Court of Appeal was told in March 1998 that the Secretary of State had indicated that he proposed not to act on his direction that those applicants should be returned to Germany, and in those circumstances that appeal was not pursued. Some of the issues which would have arisen on that appeal were subsequently decided by the Court of Appeal in ex p Iyadurai [1998] INLR 472, a case concerned with a Sri Lankan Tamil who was objecting to a proposal to send him back to Germany as a safe third country, and in these circumstances, although the same issues were canvassed in Form 86A in the present application, Mr Manjit Singh Gill told us he did not intend to pursue these issues on this appeal.

When this application was opened to us on 13th October 1998 Mr Gill based his argument on five main grounds. By way of a preliminary point he reminded us that the Court of Appeal has recently made it clear that although it will not interfere with the exercise of an administrative discretion on substantive grounds, save where it is satisfied that the impugned decision is unreasonable in the sense that it is beyond the range of responses open to the reasonable decision-maker, the human rights context is important, and 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 unreasonable in that sense (see ex p Canbolat [1997] 1 WLR 1569 per Lord Woolf MR at p 1579). Since the applicant's life may be at danger if the Secretary of State makes a decision which may lead inexorably to his being sent back to Kosovo in breach of the Convention, Mr Gill submits that the constraints on the Secretary of State are great, and that the Court must draw the boundaries around him very tightly to prevent him from taking any action which exposes his client to the real risk of refoulement contrary to the Convention.

Against this background, Mr Gill's first point was that the Secretary of State's certificate, and the subsequent removal directions, were issued unlawfully or irrationally in that in February and March of this year he himself had recognised that the situation in Germany required further investigation, so far as the practice in Germany in relation to Kosovan asylum-seekers was concerned, and he had intimated that this investigation would take place prior to any further removals.

Next, he drew attention to the contrasting practices of this country, where all or almost all ethnic Albanians from Kosovo are granted asylum by reason of their ethnicity, and Germany, where most of them are refused asylum. He submitted that in practice the applicant is at risk of refoulement by Germany to FRY, and that he certainly faced that risk in March 1998. In those circumstances he argued that his client's removal to Germany would amount to refoulement to his country of origin contrary to the Convention, and that in this respect ex p Demiraj and Ethemi [1998] Imm AR 147 was wrongly decided.

Alternatively he said that even if that case was rightly decided, the situation in Kosovo has worsened so much in the last seven months that there would be a risk of indirect refoulement now.

His fourth point was that the German approach to cumulative persecution is flawed, and that it does not properly reflect the requirements of the Convention. He argued that the German approach that a set of cumulative facts will not amount to persecution unless one matter within that set of facts amounts in itself to persecution to the requisite standard is bad in law, conflicting as it does with the text of paragraph 53 of the UNHCR's Handbook and the submissions made on behalf of UNHCR in Gashi and Nikshiqir [1997] INLR 96, 104-6.

Finally, he submitted that the Secretary of State had failed to provide adequate reasons and had failed to make adequate inquiries so as to resolve the doubts and ambiguities as to the German position.

Because the Secretary of State wished to reply to some of the new evidence filed by the applicant's solicitors very shortly before the hearing, and in any event because of lack of time to complete the hearing, we adjourned it part heard on 13th October and granted leave to the Secretary of State to file further evidence in reply, if so advised. Since both parties had also lodged with the court, for reference purposes, the voluminous evidence which was filed in the earlier appeals in ex p Demiraj and Ethemi and in ex p Iyadurai we invited Mr Gill to draw our attention to any part of that evidence he wished us to read before the adjourned hearing and I summarised the effect of this evidence earlier in this judgment.

In a second affirmation Mr Taylor has told us that the Secretary of State has made further enquiries into the approach that the German authorities adopt towards the issues of cumulative persecution and internal flight.

On the first of the issues he reminded the court that the applicant was relying principally on the opinion of Dr Reinhard Marx, which was contained in the evidence filed in the two earlier cases. The contention is that the German authorities adopt an approach which is incompatible with their obligations under the 1951 Convention. It is said that the Germans do not accept that a number of acts of harassment and/or discrimination which, in isolation, would not amount to persecution, may cumulatively bring an applicant within its ambit and that they are wrong to adopt this approach.

Mr Taylor tells us that the Secretary of State has always taken the view that this contention is incompatible with the advice he initially received from an expert in German law called Professor Hailbronner. In ex p Iyadurai the Court of Appeal ruled that the Secretary of State was entitled to accept the professor's advice, even when it differed from that given by Dr Marx. The professor had previously advised the Secretary of Sate that it is the practice of the German authorities to look at all the circumstances of an applicant's case before considering whether, in the light of those circumstances, it is reasonable for him to return to his country of origin. The Secretary of State had also taken into account the fact that Germany, as a member of the European Union, is a signatory to the EU Joint Position of 4th March 1996 on the harmonised application of the term "refugee" in the Geneva Convention, and is satisfied that its approach accords with that stated position.

In that context it is convenient to interpose that in paragraph 4 of the "JOINT POSITION" on 4 March 1996 under the heading "'Persecution' within the meaning of Article 1A of the Geneva Convention" appears the text: "Several types of persecution may occur together and the combination of events each of which, taken separately, does not constitute persecution may, depending on the circumstances, amount to actual persecution or be regarded as a serious ground for fear of persecution."

Mr Taylor has consulted the professor again, and we have been told that he has advised orally to the effect that the German courts will indeed look at the combined effect of all the matters put forward in order to assess whether an individual has demonstrated a well founded fear of persecution. He has considered the judgment in which he understands Dr Marx to have based his contrary view. In that judgment, he says, the German court said that a number of possible reasons as to why an applicant might be persecuted would not necessarily give rise to a sufficient risk. The courts should look at the combination of facts and events to see if they do in fact establish a sufficiently serious risk of persecution, the standard of proof remaining the same as in asylum claims generally.

In these circumstances Mr Taylor told us that the Secretary of State remains satisfied that his approach does not constitute a breach of Germany's obligations under the Convention.

As to internal flight, Mr Taylor told us that Professor Hailbronner had confirmed that the German authorities will consider whether, if a claim to a well-founded fear of persecution in an applicant's home region is made out, there is an area of safety in his or her country of origin to which he or she may go. Inquiries into the possibility of internal flight will usually be made in cases of persecution by non-state agents, in other words private groups or individuals. In contrast, if persecution by a State is in question, there will generally be an assumption that the danger of persecution is country wide, and the possibility of internal flight will not generally arise.

The professor said that in assessing the reasonableness of an internal flight alternative the court will take into account all the relevant circumstances. These may be both political and private. For instance, whether the applicant has a network of friends there, the general situation there (in terms of unrest) and any relevant economic conditions. The fact that living conditions in that area are poor would not of itself be sufficient to rule out the internal flight alternative, but the court will take severe living conditions into account.

Professor Hailbronner has also informed the Secretary of State that, at present, the Federal Office for the Recognition of Refugees and the German Administrative Courts are not making decisions on the basis of internal flight. The professor said that the German Administrative Courts are deferring judgments whilst further investigations are carried out and the actual situation in Kosovo is clarified.

Again, Mr Taylor tells us that the Secretary of State is satisfied that this approach is consistent with Germany's obligations under the 1951 Convention.

Mr Taylor told us that the Secretary of State has also considered all the further material put forward on behalf of the Applicant since his previous affirmation in August. Having given very careful consideration to all this material, together with his own background knowledge of recent events in Kosovo and the German approach to the situation, the Secretary of State remains satisfied that his certificate should be maintained.

In particular, he takes the view that the German approach is consistent with the most recent UNHCR position paper, which recognises that persons fleeing the conflict of Kosovo and making asylum claims may properly be assessed on a case-by-case basis. Whilst a number of groups are at particular risk of persecution, States should, as a matter of course, consider providing some form of humanitarian protection to those who do not qualify under the 1951 Convention. The Secretary of State is aware that there are groups and individuals who would take issue with this approach and are very strongly of the view that all Albanian Kosovans should be granted asylum. Nevertheless, he is satisfied that the German authorities can legitimately take the approach they do, and that this does not constitute a breach of Germany's obligations under the 1951 Convention.

Finally, and for the sake of completeness, Mr Taylor explained to the court why a Certificate was issued in this case on 16th March, when the Secretary of State was not enforcing returns to Germany in Kosovan cases.

He has always taken the view that Germany complies with its obligations under the 1951 Convention. However, the situation in Kosovo and the international response to that situation are kept under continuing review (as will generally be the case in such circumstances), and from time to time he may decide to suspend removals temporarily in respect of a particular category of third country cases where the situation in the country of origin is volatile and the international community is considering its response. This does not indicate that the Secretary of State is no longer satisfied that the third country in question is safe, but it simply reflects his concern to formulate his own response to the situation, including a consideration of the extent to which any exercise of discretion may be appropriate.

In response to this affirmation, Miss Hazemi, the Applicant's solicitor, has made a further affidavit in which she has brought the position up-to-date by reference to the information she has received from a number of different sources in Germany. One of those sources is an international journal called the "Migration News Sheet" and she has shown us extracts taken from the April to October issues which show the attitude taken by the German authorities towards the ethnic Albanian refugee crisis. It contains the statements made by the Federal Minister of the Interior and the Bavarian Minister of the Interior about their general policy in relation to the return of Kosovo Albanians to Kosovo, following an UNHCR request - some of them expressed in fairly trenchant terms. In June 1998 the Federal Minister of the Interior is reported as saying that:

"killings, destruction and expulsions are not taking part in every part of Kosovo, but only in certain places",

and the Bavarian Minister of the Interior is reported as saying:

"Yugoslavia is big'... The expelled persons can, for example, go from Belgrade to Montenegro 'where thousands of Kosovo Albanians are living completely unmolested.'"

In a more recent issue it is reported that some of the German States are unhappy with the EU ban on the Yugoslav airline and the Deputy Federal Minister of the Interior is reported as saying "that the Federal Government would be negotiating with Austria and Hungary on the expulsion of rejected asylum seekers by land."

A second piece of information that has been put in front of us is a letter from the Refugee Co-ordinator of Amnesty International in Germany to his counterpart in Amnesty International UK. That letter set out that at the time of writing the German States and the Federal Government had taken no formal decision to stop the forceful return of the Albanians to Yugoslavia, but that in pragmatic terms, following the EU decision to ban flights by the airline, it was no longer possible for the German authorities to send people back to Yugoslavia.

In another part of the letter Mr Grenz is reported as saying that:

"While some courts still say that Kosovo Albanians would have an internal flight alternative in the Belgrade area, others deny such an internal flight alternative."

In relation to the views attributed to Professor Hailbronner, that German authorities and Courts are no longer currently making decisions on the basis of internal flight, Mr Grenz is said to have told the Applicant's solicitor, at the beginning of this month, that he was astonished to hear this news and was not aware of any such developments. He mentioned decisions taken in August which did refer to one of the internal flight alternatives as one of the reasons for refusing refugee status.

The Applicant's solicitor then speaks of her contact with a reputable non-government central organisation in Frankfurt dealing with refugees. The effect of what she was told is set out in a letter from a representative of that organisation, dated 3rd November, quoting four judgments in Germany between April and August of this year, acknowledging the existence of an internal flight alternative, but pointing out that the quoted judgments were pronounced before it became known in September 1998 that Montenegro was deporting refugees from Kosovo to Albania. That organisation did not have any hints that the German Administrative Courts are still pointing to safe areas in Kosovo and Montenegro as alternative internal flight options within FRY.

The Applicant's solicitor also describes how she failed to get any clear information herself. The internal flight alternative was not currently being positively considered. She speaks of a conversation she had with Dr Marx who said that at least one of the elements in an asylum application had to meet the persecution test and this had to be proved to the clear probability standard. She reiterated the submission made by Mr Gill, at the previous hearing, that no reasonable Secretary of State properly directing himself as to his observations under the Refugee Convention could in March 1998 have issued a certificate and set removal directions. Had removal been effective as proposed, it is reasonable to assume that the Applicant would have been returned by Germany to Yugoslavia despite UNHCR's grave concerns for the safety and well-being of any ethnic Albanian returned to Yugoslavia.

So much for the evidence. I now turn back to the submissions Mr Gill made as to why this application should be granted. I turn first to his argument that the German approach to cumulative persecution was flawed and did not properly reflect the requirements of the Convention. Neither of the parties have been able to put before us the judgment of the Federal Administrative Court on which this argument turns.

Mr Gill has shown us what Dr Marx wrote in an article entitled: "The Criteria for Determining Refugee status in the Federal Republic of Germany" published in the International Journal of Refugee Law 1992 at page 151. In this article Dr Marx said at page 168:

"Later the court took a restrictive position, stating that a mere accumulation of various possible reasons of persecution was not sufficient to establish a clear probability of persecution. Instead, at least one of these different reasons objectively had to prove the 'clear probability' test."

It appears to me that it is that judgment to which Dr Hailbronner was referring when he emphasised that the precise language which the Court used in that context was the word "necessarily". If that is indeed what the German Courts said then the difference between what Dr Marx says and Dr Hailbronner says about German law appears, on the whole, to be resolved. Dr Hailbronner's approach was summarised by Lord Woolf MR in R v Secretary of State for the Home Department ex parte Iyadurai [1998] INLR 472 at page 481. I quote:

"As to the standard of proof he [Dr Hailbronner] points out there have been divergent interpretations in the lower courts but that in its decision of 15th March 1998 the Federal Administrative Court has clarified the requirement of 'considerable probability'. This is not to be interpreted in a mathematical statistical way. It requires an evaluation of taking into account all the circumstances of the case. The test is met, if in consideration of all circumstances of the case a reasonable person in the situation of an asylum seeker would be afraid of persecution. He therefore contends that 'a well-founded danger of political persecution may well exist if on the basis of a mathematical consideration there is less probability than 50%.' What is essential in the Federal Administrative Court's view is that by comprehensive evaluation of all the circumstances of the case on balance the factors indicating a danger of persecution weigh more heavily than those indicating the asylum seeker's safety."

Although in that passage the Master of the Rolls was quoting the professor in the context of an argument about the appropriateness of the standard of proof used in German Courts, it is clear that the professor was saying that the German Courts evaluate all the circumstances of the case, and if the professor's advice is to be accepted, as the Court of Appeal in ex parte Iyadurai said that it was appropriate for the Secretary of State to rely on that sort of advice, the qualification which Dr Marx suggests has been based in German law by the Federal Administrative Court is not there.

Mr Gill then fell back on a fall-back argument that whether or not the German Administrative Law Court or the Federal Administrative Court had set out the law in these terms, in practice inferior Courts in Germany must be failing to comply with that law because this is the only way that one could rationally explain the decisions being taken by German Administrative Courts. He did not draw to our attention any particular decision on which he relied in support of this submission. Miss Giovannetti has shown us a letter from Dr Hailbronner which was exhibited in the earlier litigation, dated 17th March 1998, in which he said:

"The argument of the lawyer seems to amount to the assumption that the administrative courts do not comply with the judgments of the Federal Administrative Court. In my view, this assumption is totally unfounded. In my own practice as a judge at the High Administrative Court of Baden-Wurttemberg... in a Chamber adjudicating upon asylum claims from 1988 until 1992, I have had the experience that the administrative courts there were very rapidly adjusting their jurisprudence to any decisions of the Federal Administrative Court, although there is under the German legal system no binding judicial precedent."

He concludes there letter by saying:

"In conclusion, there is no support that the German administrative courts deviate in principle from the test used by the Federal Administrative Court as previously described."

In my judgment the Secretary of State was entitled to rely on the advice that he received from Dr Hailbronner, for the reasons set out by the Court of Appeal in  ex parte Iyadurai, and I would reject Mr Gill's submission that the German approach to cumulative persecution was flawed and did not properly reflect the requirements of the Convention on the approach to those requirements that the Court of Appeal explained in ex parte Iyadurai.

I turn now to the submission that the Secretary of State failed to provide adequate reasons and failed to make adequate inquiries so as to resolve the doubts and ambiguities as to the German position. I remind myself of Mr Gill's submission based on what the Master of the Rolls said in ex parte Canbolat about the anxious consideration in a human rights case like this, that the Court should adopt when considering whether the decision of the Secretary of State was one which he could lawfully take.

The burden of Mr Gill's submission was that the decision taken by German Administrative Courts to reject asylum claims was so out of kilter with the approach in other countries that there must be something going on there which was wrong, and that the evidence deployed in the earlier cases, about the fate of Kosovo Albanian asylum seekers when returned to Kosovo, imposed a heavy burden on the Secretary of State to make even more detailed inquiries into what was going on in the different Administrative Courts in Germany than the Secretary of State, indeed, did.

The way that the Court of Appeal approached the duty of a supervisory court in a case like this is set out in the judgments of Lord Woolf MR and Buxton LJ in ex parte Iyadurai. At page 477 Lord Woolf says:

"... in considering whether or not the government of the third country would send the applicant to another country 'otherwise than in accordance with the Convention' what it is important for the Secretary of State to decide is not whether the third country formulates its test in precisely the same language as that adopted by this country but whether the Secretary of State regards the third country on the material available to him as properly giving effect to the Convention. This exercise involves examining the approach adopted in the third country against the proper international interpretation of the provisions of the Convention. It remains the situation that the Secretary of State is not required 'to become deeply involved in a comparative analysis of the law of different signatories to the Convention' (Kerrouche at 93D) and the third country can be complying with the Convention although it expresses its approach in different language to that which would be used in this country. If the Secretary of State has formed the opinion required by s 2 then the court's role is limited to one of supervision. The court can do no more than inquire whether the Secretary of State has (i) taken adequate steps to inform himself of the position in the third country, (ii) properly considered the information which is available to him, and (iii) come to an opinion which is consistent with that information, recognising that it is his responsibility to evaluate the material which is available to him."

(See also Buxton LJ at pages 486C to E and pages 487F to H.)

I have set out the evidence given by Mr Taylor who also referred us to the voluminous evidence given on behalf of the Secretary of State in the two earlier appeals which, for sensible reasons, was not repeated in the evidence in this case. In my judgment the Secretary of State was entitled to approach the question of safety in Germany along the lines described by Mr Taylor. I have set out, step by step, what Mr Taylor's evidence was of the Secretary of State's consideration of the matter and how, from time to time, when further evidence came to his attention, he was willing to reconsider the matter, to look at the further evidence, to make further inquiries, and, in the distressing situation in Kosovo today and, indeed, throughout this year, it is clear that the Secretary of State has been updating himself at regular intervals.

Mr Gill argues that he should have been even more proactive in these matters. In my judgment the Secretary of State did everything which was appropriate for him to do in making the assessment that he did. I would not set aside his decision on those grounds.

The next two arguments go to the factual position on the grounds in Kosovo and whether any rational Secretary of State could reasonably come to the conclusion, either as at March 1998 or more recently, that the Applicant was at risk of refoulement by Germany to the FRY in breach of the Convention. Having regard to the approach which this Court has been enjoined to adopt in the leading decisions of ex parte Canbolat and ex parte Iyadurai, to examine not only the substantive law in the allegedly safe third country but also to examine what it is told of the practical application of that law by a number of Administrative Courts, both at the lower level and at a higher level in the states and also at federal level, in my judgment the Secretary of State was entitled to reach the view that the German Courts were applying the Convention, and the law underlying the Convention, to the facts of the particular cases before them. While Mr Gill and others were clearly unhappy about the view that the German Courts adopted, to the effect that this was not a case of group persecution, the Secretary of State was entitled to take the view that that was an attitude which the German Courts could properly adopt consistent with their obligations under the Convention, and it is clear from the UNHCR material that the UNHCR focuses more closely on individual Kosovo Albanians who are at particular risk of persecution rather than Kosovo Albanians as a whole.

So far as the question of the internal flight alternative is concerned, it appears from Mr Taylor's latest affirmation that German substantive law is very similar to the substantive law applied in this country, following the leading decision of the Court of Appeal in ex parte Robinson, and that the application of the law to the facts of a particular case has sometimes been applied in the different administrative Courts, as one might expect, in different manners depending on the evidence before that particular Court. The evidence also shows that as the situation in FRY changed the decisions in the Administrative Courts in Germany changed, reflecting an anxiety to comply with the requirements of the Convention and, for those reasons, I am satisfied that the Secretary of State was entitled properly and lawfully to form the view he did.

Finally, Mr Gill submits that whatever the latest position might be, the Secretary of State ought not to have issued a certificate in March because at that stage he had doubts as to the position in Germany. The evidence in relation to this is contained in a letter by the Treasury Solicitor, dated 11th March 1998, in which it is written:

"The Secretary of State is not currently removing ethnic Albanians from Kosovo to Germany, as it is not yet clear whether Germany will continue to refuse asylum to ethnic Albanians from Kosovo or seek to return them under its readmission agreement with the Federal Republic of Yugoslavia."

In a later letter written by a representative of the Third Country Unit of the Asylum Directorate to the Applicant's solicitors, dated 21st May 1998, she wrote: "Following the decision of the Court of Appeal not to hear the appeal in the case of Demiraj, the Secretary of State decided, with effect from 19 March 1998, to temporarily suspend arrangements to return Kosovan asylum seekers to Germany. This suspension was for the purpose of establishing whether there was, or likely to be, any change in German practice in respect of the return of Kosovan asylum seekers to the Federal Republic of Yugoslavia in light of recent events in Kosovo.

As of today's date this suspension remains in place.

We have been told by Miss Giovannetti that the suspension remained in place until 24th June 1998.

The Secretary of State's conduct at this juncture must be set against the background that shortly before he took the decision not to remove ethnic Albanians back to Germany, UNHCR had made a general plea on humanitarian grounds that Kosovo Albanians should not be returned to FRY. As I have said, Mr Taylor has explained that decision in his much more recent affirmation when he has described the Secretary of State's general practice to decide "to suspend removals [for the time being] in respect of a particular category of Third Country cases where the situation in the country of origin is volatile and the international community is considering its response." The Secretary of State's decision in these cases "does not indicate that [he] is no longer satisfied that the Third Country is safe, but simply reflects the Secretary of State's concern to formulate his own response to the situation, including consideration of the extent to which any exercise of discretion may be appropriate." In my judgment, it appears from the material before us that what the Secretary of State was concerned about, when he suspended the transfer of Kosovo Albanians from this country to Germany, was the question, whatever decision might be taken by the Administrative Courts on refugee applications, whether the German authorities were going to comply with the plea of the UNHCR to keep them in Germany for the time being on humanitarian grounds. If the evidence was that they were not willing to do so, then it might affect what the Secretary of State, in the exercise of his discretion, quite outside the four corners of the Convention, might himself decide to do.

In my judgment, this does not set up proper grounds for challenging the genuineness of the Secretary of State's certificate. He has remained adamant throughout all the evidence before us, over the last two years, that Germany is a safe third country and I see no reason why his certificate in this case should be set aside on the grounds that for humanitarian reasons he decided to suspend the deportation of Kosovo Albanians temporarily to Germany. For these reasons, in this very anxious case, I would refuse this application.

MR JUSTICE SEDLEY:

I agree. Broadly the picture is that by the early part of this year a sufficient disparity had become apparent between the outcomes of substantive asylum claims by Kosovo Albanians in Germany and the United Kingdom respectively to cause the Secretary of State, particularly in the light of advice coming from UNHCR, to suspend removals to Germany under the Dublin Convention. He has since satisfied himself on inquiry that the disparity was not due to any significant difference between the two States in their courts' interpretation of the Geneva Convention, much less that any such difference was beyond what the Convention could bear.

Mr Gill is right, it seems to me, to argue that an asymmetry of outcomes as gross as seems to be the case here is more than enough to put the Secretary of State on inquiry about the approach being taken by the German courts. But he is wrong in his submission that by itself the disparity makes removal to Germany unreasonable. Whether it does so depends upon what the Secretary of State, within proper public law limits, makes of the reasons for the disparity.

While the true reasons for the contrasting numbers are still unexplained, at least to this Court, the Secretary of State was entitled to reach the view that they were not reasons of jurisprudence. On the material before the Court, even the close scrutiny of his decision which the law calls for in cases of this importance to the individual does not reveal a justiciable flaw in his reasoning. The benign exercise of the discretion not to remove cannot, without more, be translated into an admission that removal is known to the Secretary of State to be tantamount to refoulement. And absent evidence which the Secretary of State was bound to accept that the outcomes of claims in Germany have been determined by a jurisprudence incompatible with the Geneva Convention, there is no more.

For these reasons, as well as those given more fully by my Lord, I agree that the application fails.

MR GILL: The Applicant is legally aided. May I have an Order for legal aid taxation?

LORD JUSTICE BROOKE: Certainly.

MISS GIOVANNETTI: Could we ask that your Lordships direct that there be an expedited transcript made available?

LORD JUSTICE BROOKE: It is certainly desirable that it be made available quickly.

MR GILL:

I have an application for leave to appeal. This is a matter which is one of, as your Lordships have recognised, grave seriousness for a range of people. Despite the fact that the Secretary of State undertook not to remove people, knowing as he must have done in March that the effect of that removal would have been to subject them to the gross treatment that would have occurred in Kosovo, this Court has come to the conclusion that it has, and it is one conclusion of such seriousness for the lives of a range of people that I say this really does merit the situation to a higher level.

MR JUSTICE SEDLEY: Have we decided anything of legal significance that was not decided by Iyadurai?

MR GILL: So far as the legal significance is concerned, there are issues here which are relevant to the approach to be taken to the cumulative persecution argument, the internal flight argument and, more particularly, to the nature of the Secretary of State's inquiries. True it is that Iyadurai decided what the nature of the inquiry should be, but when one applies that law to the matter before the Court, I say, with the greatest respect to the Court's judgment, that it is a little difficult, one might say, to see how it is that the Secretary of State can have complied with inquiries to find out what is going wrong in Germany knowing that the end result of what is going wrong is, that people are, or have been at least until recently, suffering in Kosovo. The application of the jurisprudence in Canbolat and Iyadurai is what I say is seriously in issue in this case.

LORD JUSTICE BROOKE: Do you have any observations one way or the other?

MISS GIOVANNETTI: No, my Lord.

LORD JUSTICE BROOKE: What is the position in relation to the other Kosovo Albanians. There have not been any applications to this Court. Are they waiting the decisions of the Court?

MISS GIOVANNETTI: They are awaiting your Lordship's decision, yes.

LORD JUSTICE BROOKE: There is nothing to be consolidated?

MISS GIOVANNETTI: Not as far as I am aware. May I briefly take instructions? (Instructions taken) There are large numbers awaiting the outcome of this. I cannot assist your Lordship further.

LORD JUSTICE BROOKE: They are not waiting at the Crown Office?

MISS GIOVANNETTI: I think most of them have had to issue, and there has been a general adjournment by consent simply so that the time limits be suspended.

MR GILL: The decision of this case is relevant not only in this case but to a large number of other people.

LORD JUSTICE BROOKE:

In view of the anxious nature of the issues, we will grant leave. I know that the lists in the Court of Appeal are pretty full, but I would certainly be anxious that you should have an early hearing date for the appeal. However, I am not saying by that that I think there is any chance of being heard before Christmas, I simply do not know. The parties may wish to make observations to the listing authorities. Clearly the Court of Apeal ought to be able to hear the appeal reasonably soon.