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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bouheraoua & Anor, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 747 (11 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/747.html Cite as: [2001] EWCA Civ 747, [2001] Imm AR 614

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Dyson)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE PETER GIBSON: LJ Buxton will give the first judgment.
2. LORD JUSTICE BUXTON: In these two appeals from a decision of Dyson J, the appeals being brought by the Secretary of State, both original applicants are Algerians. Their cases are to some extent different from each other, but relevantly to the issues in this appeal they both claim to have fled from Algeria because they feared persecution, in Geneva Convention terms, emanating from non-State agents in that country. They both came to the United Kingdom via Greece, where they had stayed for some one or two days. The Secretary of State applied to both of their claims section 2 of the Asylum and Immigration Act 1996. He certified, in terms of section 22(C) of that Act, that he was satisfied that Greece would not refoule the applicants to Algeria otherwise than in accordance with the Geneva Convention.
3. The issue relied on by the applicants in their application for judicial review of that determination was the attitude allegedly adopted by the Greek authorities and the judicial authorities in that country to persecution by non-State agents. As is well-known, there are two schools of interpretation of the Convention in respect of persecution by non-State agents. Those are the accountability approach and the protection approach. Put shortly, the accountability approach is that a State is not responsible for persecution by non-State agents unless the persecution emanates from the State or the State is in some way complicit with that persecution. A number of countries in Europe, including countries in the European Union, adopt that view. The protection approach is that the Convention's aim and object is to afford protection from persecution by non-State agents if the authorities of the State in question are unwilling or unable to afford effective protection. That is the majority view of signatories to the Convention. It is the view of the United Kingdom.
4. In the case of Adan the House of Lords held, as a binding determination of English domestic law, that the Geneva Convention has only one meaning in international law, that is to say the protection theory, a view that is based upon interpretation of Article 65 of the Geneva Convention.
5. It was the applicant's contention that there is sufficient doubt about whether Greece does in fact apply the protection theory, that is to say the theory that is now as a matter of binding English law the correct interpretation of the Convention, as opposed to the accountability theory, for it not to be open to the Secretary of State to hold the opinion which is referred to in section 22(B) of the 1996 Act, and thus to the applicants back to Greece without substantive consideration of their claim in this country.
6. The approach of the courts of this country to a judicial review application on such basis is set out in the judgments of this court in Regina v Secretary of State for the Home Department Ex Parte Canbolat [1997] 1 WLR, at page 1569. It will suffice to quote two short passages from the judgment in that case of Lord Woolf, Master of the Rolls. Firstly, at page 1577 E, Lord Woolf referred to the condition that the Secretary of State is required to certify, and then said this:

"The language of the condition is unqualified. This is the statutory test. It is a test imposed as a requirement of overriding the protection which would otherwise be provided by section 6 of the Act of 1993. Clearly it is necessary to treat the test as not being totally unqualified. It must be subject to the implication that it is permissible to grant a certificate when there exists a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent. effective. There are going to be abberations. All that can be expected and therefore all that Parliament could have intended should be in place prior to the grant of a certificate was a system which can be expected not to contravene the Convention. What is required is that there should be `no real risk that the asylum seeker would be sent to another country otherwise than in accordance with the Convention.' The unpredictability of human behaviour or the remote possibility of changes in administrative law or procedures which there is no reason to anticipate would not be a real risk."

7. Then at page 1579 E, Lord Woolf said this:

"In Reg. v Ministry of Defence, Ex parte Smith [1996] QB 517, 554 Sir Thomas Bingham M.R. accepted as `an accurate distillation of the principles laid down' by the authorities a submission of Mr. Pannick which is in this terms:

`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.'

When considering issues in relation to asylum seekers, the court is necessarily concerned with issues as to human rights and we would regard Mr. Pannick as accurately in that passage indicating the correct approach to be applied here.

It is also important to bear in mind that it is for the Secretary of State to evaluate the material. If the Secretary of State could properly come to the decision which he did on that material then this court cannot interfere. He is the person who has to form the opinion. However in order to form the opinion, it is necessary for him to take such steps as are reasonable in the circumstances to acquaint himself with the relevant facts."

8. The applicants produced a certain amount of evidence, in the shape of reports from two Greek lawyers, saying that the Council of State, the relevant Greek court, had not yet determined which was the correct theory as to non-State agents as recognised in Greek law, and that practice suggested that Algerian applicants might not be dealt with in accordance with the Convention. More concretely, one of the lawyers reported a particular case concerning an Iraqi Kurd, Ali Ali, who in November 1998 had been refused asylum on various grounds, one of which appeared to be the application of the accountability theory by the expert committee advising the Ministry of Public Order and headed by the minister's legal advisor. As against that the Secretary of State pointed to, and said that in making his decision he had relied on, a consistent pattern of statements in international forums by the Greek Government that it applied the protection theory, and assurances to that effect had been given separately to the United Kingdom Government. That material, which it is necessary briefly to review, was as follows.
9. In May 1995 the United Nations High Commission on Refugees had published a press release in which it had reviewed the policy of various, indeed of all, European Union countries with regard to the question of non-State agents. They said this:

"At present only four EU Member States, France, Germany, Italy and Sweden, do not recognise such victims of persecution by non-State agents as refugees."

10. That is relied upon as indicating that the High Commission accepted that it was the policy in Greece to apply the protection theory.
11. In July 1998 the Ministry of Public Order of Greece wrote to the responsible official in the Asylum Directorate of the United Kingdom, which had made inquiries as to the policy of the Government of Greece, saying this:

"... when the alleged fear results from non-governmental forces, we follow the directives of the United Nations's High Commissioner for Refugees textbook that includes the procedures and standards for the definition of the refugee status (paragraph 65) ..."

12. That is relied on by the Secretary of State as indicating that the requirements of Article 65, which include, as I have said, the requirement of protection theory, were respected by the Greek Government.
13. In March 1999 a Presidential Decree was produced by the Greek State, Article 35 of which addressed the procedures for dealing with applications for refugee status. It stated that the Minister adjudicates on appeals following a recommendation made by a six member committee, with the legal councillor for the Ministry of Public Order as the Chairman. The Committee included representatives from the Appellate Bar Association and of the United Nation High Commission for Refugees. That procedure is relied on by the Secretary of State as demonstrating that the view of the United Nations High Commission is strongly represented in determinations reached by the Greek Government.
14. In June 1999 a body known colloquially as CIREA, that is "Centre d'Information, Reflexion, et Exchange sur Asile", submitted a questionnaire to Member States in order to obtain information about their policy on asylum matters. Amongst the questions that it asked was whether it was the attitude of the Greek Government that it would regard as eligible for asylum a case where there was "threat of severe persecution by third parties where protection by the State is inadequate or non-existent". The Greek Government replied that that was indeed its policy.
15. The Secretary of State also relies upon continuing and informal contact between his officials and representatives of the Greek Government, as set out in an affirmation made on his behalf by Mr Taylor of the Immigration and Nationality Directorate in July 1999. Mr Taylor reported that he had been consistently informed by the United Nations High Commission in Athens that Greece can be considered safe for asylum claimants under the Dublin Convention: the Dublin Convention being a Convention of the European Union. He also drew attention to the material to which I have already made reference and said that he had close contact with the Greek authorities and with UNHCR since the issue of the press release in 1995, and also monitored reports from third party agencies. He said that there was no information known to him that Greece had changed its position as reported by the UNHCR in 1995. As a result of that study, the Secretary of State had been advised, and took the view, that there was no reason to believe that the Greek authorities would not give proper consideration to claims involving non-State agents.
16. It will be noted that all but the first item in this list of sources, that is to say the UNHCR statement of May 1995, post-date the Secretary of State's decision, but they all predate the judicial review hearing before Dyson J. Reliance on that material was justified before Dyson J, and before us, by the fact that the Secretary of State was in these proceedings replying to objections that had been raised by the applicant; and that at the time of the hearing before Dyson J the question realistically was whether the Secretary of State could at that date consider that there was no reasonable danger of refoulement from Greece in breach of the Geneva Convention.
17. The matter was put thus from paragraph 9 of Mr Taylor's affirmation, to which I have already referred:

"The Secretary of State has given careful consideration to all the material put forward by the Applicants since the certificates were issued."

18. He then referred to various material produced by the respondents and concluded in the terms that I have already indicated that, taking all the material into account, he was satisfied of the consideration given to non-State agent cases.
19. All this leaves the particular case of Ali Ali, which is the main point relied on by the applicants. This was a decision, as I have said, made in November 1998. The Secretary of State produces the statement of the decision set out by the Ministry of Public Order. It appears that this was a decision made by the Committee that was referred to in the Presidential Decree to which I have already made reference, though without at that time membership on the part of the representative of the UNHCR, who appears to have been added to the Committee after the date of the decision in Ali Ali.
20. There were a number of reasons given why Mr Ali Ali should not be granted asylum in Greece. It is right to say that the exact facts of his case and the terms of his application in that country remain to some extent obscure, but the point that is relied on by the applicant is this: that in the first ground for decision the Committee sets out the claim that Mr Ali had left Iraq because of threats on the part of two Kurdish political parties and says that that cannot support his request for political asylum:

"These threats do not come from governmental authorities and do not justify fear of persecution for reasons mentioned in the Convention of Geneva."

21. On the face of it that seems to be an application of the accountability theory without reference to the protection theory. The Secretary of State's view is that in the light of all the other material before him that decision is to be treated as an abberation in terms of Lord Woolf's speech in Canbolat, which I have already set out but which merits repetition in this particular context:

"No country can provide a system which is 100% effective. There are going to be abberations."

22. The Secretary of State also relies in this connection on a letter from the UNHCR dated 26th August 1999, which reads as follows:

"Concerning Greece's policy on persecution by non-State agents, until recently, Greek asylum authorities (Ministry of Public Order) had never rejected an otherwise well-founded claim solely on the basis that persecution emanated from non-State agents.

In December 1998, the Ministry of Public Order first did so in the case of an Iraq Kurd. However, an application to quash the decision was lodged by the Iraq Kurd's lawyers at the Council of State. There is no decision yet."

23. The Commission went on to say that they were not able to draw any conclusions from cases where asylum had been granted because such cases do not receive a reasoned judgment.
24. The Secretary of State's deponent, Mr Taylor, dealt with the matter thus in his second witness statement dated 4th April 2000. He referred to the letter just referred to, and says this at paragraph 5:

"The conclusion I draw from that letter is that the UNHCR has hitherto accepted that the Greek authorities consider asylum claims based on non-state persecution in accordance with the mainstream interpretation shared by, inter alios, the UK, but that it has been made aware of one case in which the Greek asylum authorities appear to have rejected an asylum claim on the basis that persecution emanated from non-state agents."

25. Then he continued in paragraph 8 in the following terms.

"The Applicant has brought to the Secretary of State's attention the case of one individual asylum applicant in Greece in which it would appear that, although the refusal of asylum was based on a number of grounds, the Greek authorities may have rejected the claim on the basis that non-state persecution is not recognised under the terms of the Geneva Convention. That would appear to be an aberrant decision. Clearly, no country's asylum system is 100% foolproof. It is for this reason that most, if not all, signatories to the Geneva Convention provide for a system whereby an asylum seeker whose asylum claim has been rejected has recourse to some form of appeal. This is the case not only in the United Kingdom but also in Greece, and it would appear that the Iraqi Kurd, on whose case the present Applicant relies, has availed himself of the Greek appeal system and that he has an outstanding application to quash the decision. Moreover, the Secretary of State notes that the decision on which the Applicant relies was not one of the Greek higher courts, but was the outcome of a first instance lower level appeal. The Secretary of State is conscious that there are instances in the UK where Special Adjudicators fall into errors of law. This does not mean that UK law and practice does not accord with the Geneva Convention. On the balance of all the evidence before him, therefore, the Secretary of State is satisfied that this decision does not properly represent the law and practice in Greece, which is such that persecution by non-state agents for a Convention reason is considered to bring asylum claimants within the terms of the Geneva Convention."

26. The Secretary of State therefore maintained his certificate. Mr Taylor set out the reasons for that in paragraph 10 of the affirmation that I have already referred to:

"Given the concerns raised by the Applicant, the Secretary of State has asked the Greek authorities if they have any comments to make in relation to Mr Ali's case. Unfortunately it is the Secretary of State's experience that it can take some considerable time for foreign governments to formulate a response to enquiries of this nature, particularly where they relate to an ongoing case, and he has not yet received a response to his enquiry. He has, therefore, carefully reviewed the position in order to decide whether or not he feels it is appropriate to maintain his certificate in the absence of such a response. Having considered the matter with great care, the Secretary of State is entirely satisfied that his certificate should stand in the light of the totality of the evidence he does have. He is satisfied that Greek law and practice accord with the Convention, that, at most, Mr Ali's case represents a misinterpretation of that law and practice, and that it is an isolated instance. Seen in the context of the compelling evidence that the Greek authorities adopt the same approach to the question of non-state persecution as the UK, the Secretary of State remains satisfied that the decision in the case of the Iraqi Kurd is not a reliable reflection of the Greek authorities' approach towards non-state persecution; that it is amenable to review by the Greek courts, which will properly apply Greek law on this issue; that the Greek authorities would not send the Applicant elsewhere otherwise than in accordance with the Convention; and that the certificate in this case should be maintained.

In view of Mr Taylor's statement that inquiries made of Greece for a full explanation of the Ali case had not yet borne fruit, it should perhaps be noted that the proceedings before Dyson J had been adjourned on two occasions in the hope that such information would be forthcoming in the event that a court was invited to rely on those matters to which Mr Taylor refers. Dyson J expressed his approach to the general question before him in paragraphs 18 and 19 of his judgment:

"18.The question for the Secretary of State is whether the facts indicate that there is a real risk that the asylum seekers would be sent to another country otherwise than in accordance with the Convention. Translated to the context of this case, this means that the question for the Secretary of State is whether, on the facts, there is a real risk that, in considering the claims by these two Algerian Applicants, the Greece asylum authorities would apply the accountability approach.

19.The need for `anxious scrutiny' in asylum cases has been repeated in many decisions of this Court and the Court of Appeal. It is not a mantra to which only lip-service should be paid. It recognises that these cases engage fundamental human rights."

27. There Dyson J referred to the test as being one of "real risk". That formulation is taken by him, quite clearly, from the judgment in this court in Canbolat at page 1577 G. There is no reason to think, as was faintly urged in argument before us, that in quoting that particular test the judge had overlooked the warnings as to aberration and so forth to be found in other parts of the passage from which that statement comes. The judge held that, in the absence of evidence about Ali Ali, the Secretary of State would not have been entitled to conclude that Greece was a safe third country, even on the test adopted in Canbolat and other cases that counsel for the Secretary of State happily described as "an enhanced Wednesbury" test, a test that the Secretary of State rightly accepts.
28. What then of the Secretary of State's conclusion that Ali Ali was an aberrant case which could not be safely acted on by him? The judge addressed that question in some detail in paragraphs 21 to 24 of his judgment. His careful analysis does not lend itself to summary, at least not any summary that I can achieve, and therefore I set it out in full:

"21.I have come to the clear conclusion that it was not reasonably open to the Secretary of State to decide on the totality of the material that was before him that there was no real risk that the Greek asylum authorities would ... apply the accountability approach when considering the claims by these two Algerian nationals. It is true that according to the UNHCR and CIREA material to which I have referred, the Greek authorities assert that they apply the protection approach. But there is no evidence of any case in which asylum has been granted to persons claiming non-state persecution. As the UNHCR representative wrote in a letter dated 26th August 1999:

`However, it is not possible to say whether and in how many cases asylum has been granted to persons claiming non-State persecution, since there is no motivation of decisions granting asylum.'

22.I think that by `motivation' the writer meant `reasoning'. The only evidence of a case in which a claim based on non-state persecution was considered by the Greek authorities is that of Ali Ali. If this had been a decision by a single official in the Ministry of Public Order, it might have been reasonable to dismiss it as aberrant, particularly if there was evidence from someone in a position of authority in the Ministry that this was the view that they took of it too. But in the present case, the initial decision was upheld by the 4 man Ministry committee, an apparently high powered committee chaired by `the legal adviser' to the Minister. In these circumstances, it is far more difficult to treat the decision as an aberration. The Secretary of State has responsibly sought comments from the Greek authorities about the Ali Ali case. He was right to do so, since the fact that the initial decision was upheld by the Committee casts doubt on the accuracy of the general assertions contained in the UNHCR and CIREA material. One would have thought that if this was, in truth, an aberrant decision, inconsistent with a clear policy of adopting the protection approach to non-state persecution cases, the authorities would have so informed the Secretary of State.

23.I understand the present applications were adjourned twice in order to enable the Secretary of State to obtain confirmation that the decision was aberrant. No such confirmation has been received. Given the composition of the Committee that upheld the initial decision in the Ali Ali case, this is perhaps not surprising. In my view, these facts should have led the Secretary of State to conclude, at the very least, that there is real doubt as to whether, as a general rule the Greek authorities do apply the protection approach. Actions speak louder than words. Absent the evidence of the Ali Ali case, it would have been difficult to criticise the Secretary of State's decision. But this case is the only hard piece of evidence that was available to the Secretary of State. If the decision had been explained by the Greek authorities as an aberration, the Secretary of State could reasonably have accepted that explanation and so treated it. If the Council of State had quashed the decision on the grounds that it was inconsistent with the true interpretation of the Convention, the Secretary of State could properly have decided as he did. But there has been no determination by the Council of State.

24.In my judgment, on the material before him, the Secretary of State could not reasonably have treated this decision as aberrant. In reaching this conclusion I remind myself that I am reviewing the decision of the Secretary of State on the so-called `enhanced' Wednesbury principles. Like the Court of Appeal in Turgut, I do not consider I should pay especial deference to the Secretary of State's conclusion on the facts. The human rights involved here are both absolute and fundamental: the right to like and the right not to be exposed to a real risk of ill-treatment within the meaning of Article 3 of the European Convention on Human Rights. These are not qualified rights requiring a balance to be struck with some competing social need. Further the Court here is as well placed as the Secretary of State to evaluate the risk once the relevant material is placed before it. The question is whether there is a real risk that the accountability approach would be applied. The real risk test is not particularly stringent, and in my judgment the Secretary of State ought to have been persuaded that it was made out on the facts of these two cases."

29. In my view the judge's approach was quite unassailable. He carefully reviewed the information that was before the Secretary of State, and he brought to the facts of the case, if I may respectfully say so, a practical realism, logic and an appropriate degree of scepticism that should, in my view, have informed the Secretary of State's anxious consideration of this matter under the enhanced Wednesbury test; and which was, I have to say, as the judge thought, lacking in that consideration. I say nothing of what the powers of the court would have been in an ordinary judicial review case when a simple Wednesbury approach was the appropriate test. But the judge was entitled to take the view that he did of the Secretary of State's decision when judged, as it had to be, by the standards imposed by Canbolat, by the case in the House of Lords of Bugdaycay, and by Ministry of Defence v Smith to which Lord Woolf also made reference.
30. That suffices to dispose of this appeal, but I would venture to add three further miscellaneous comments.

(1) Mr Burnett QC, on behalf of the Secretary of State, argued that Ali Ali predated the various assurances that had been received from Greece and predated the further steps taken in that country, including the availability of an appeal to the Supreme Court. It was inconceivable, in his submission, that the cases of these present applicants, which would be heard under the current regime, would be decided on the accountability theory. But the difficulty about that, at first sight cogent, argument is that which was pointed out by the judge in the passages I have already quoted. If Ali Ali really was an aberrant decision and was seen as such within Greece, it would be easy enough for the Greek Government to say so, and to say further that in the Supreme Court proceedings it would not be seeking to hold the decision that the Ministry's Committee had given. No such indication has been forthcoming, despite the best efforts of the Secretary of State to receive it, and despite there having been two adjournments for that very purpose. That failing may be explicable, as the Secretary of State's deponents sought to explain it, on the grounds of diffidence on the part of the Greek authorities in commenting on currently proceeding cases, or simply by inertia or slowness. The point, however, is that the information that the judge thought to be necessary for a rational decision simply was not available, for reasons either good or bad.

(2) The judge's comment that the court was in as good a position as the Secretary of State to assess the information available was taken from the judgment of this court in the case of Turgut [2000] Imm AR page 306. That was a case on Article 3 of the European Convention on Human Rights, now the foundation of Rights in English domestic law by reason of the Human Rights Act 1998. The Human Rights Act was not in force at the time of that judgment. The court emphasised that therefore its role may be one of review only. But at the same time the court may well have been influenced by the intensity of the rights that are created by Article 3 and the importance, even before the coming into actual operation of the 1998 Act, that such rights held in English domestic law. For my part, I would hesitate before saying that in all cases subject to the enhanced Wednesbury test, not just EHCR cases, the court can or should go further than an approach of anxious scrutiny of the actual decision of the Secretary of State, and come as near as the court may have done to making its own decision on the facts. If I thought that this element in the judge's decision had been crucial, or even of significant, importance to that decision, I would have wanted to hear further argument on this point. As it is, however, the judge plainly reached his conclusion on orthodox judicial review grounds, and would have done so without any reference to Turgut.

(3) The Secretary of State relied not only on the reasoning in Canbolat but also on the outcome of that case. For the reasons given by the judge, that approach was not justified. But it is worthwhile noting why that was so. In Canbolat the complaint about the French system was not that French law was inconsistent with the Geneva Convention, but that those administrating that law in France were not sufficiently respectful of its provisions. As the Court of Appeal said, and as it repeated in Adan in a passage cited by Dyson J at paragraph 13 of his judgment, that is a question of fact and practice, where the court will give weight to the Secretary of State's conclusions as a result of his inquiries and where, as was said in Canbolat, one aberrant case will not in itself demand a change of opinion. But the complaint in our present case is not that Ali demonstrates administrative failings at a low level, but that it seems to suggest a view of the law entertained at a level of influence and importance that is inconsistent with the Geneva Convention. Accordingly, Ali Ali, if it is aberrant at all, is aberrant in a quite different way from the instance hypothesised in Canbolat, and requires a quite different form of explanation before it can be properly held not to shed relevant light on practice in the country concerned. The adherence in the Secretary of State's evidence to the approach, indeed to the very wording, used by the Court of Appeal in Canbolat, suggested that that distinction may not have been appreciated. This point makes no difference to the outcome of this appeal, but it may need to be considered in future third country cases.

31. I should finally add that the applicants also complained that the Secretary of State had not in any event made sufficient inquiries to enable him to decide the question, in the spirit of some observations in the case of Gashi [1999] INLR 276 at page 306. Dyson J agreed also with this submission. But at least in terms of the present case, I agree with the contention of Mr Burnett QC that it raises no separate point.
32. I would therefore dismiss this appeal.
33. There is one further matter that I must address. On 4th May, that is to say the last working day before the hearing of the appeal, the court received an application on the part of the Secretary of State to adduce fresh evidence. That consisted largely, though not entirely, of a report of discussions held by the Secretary of State with the Greek authorities on 9th November 2000 -- that is to say nearly six months before the application was made -- together with some further factual information about Ali Ali: though not, so far as we could see, addressing the actual issue of the accountability theory. The Secretary of State, through Mr Burnett, made it clear that he would not claim to have made a fresh decision on the basis of this material. Rather, it having been argued that other fresh material undermined the Secretary of State's original decision, it was open to demonstrate further that there had been no breach of the Geneva Convention. It was not suggested that the material itself was before the Secretary of State when he made his original decision or when he sought to support that decision before Dyson J. It was however suggested that to admit such material would be to act in the same spirit as to permit up-to-date material to be admitted on a judicial review application, as indeed had occurred in this very case. When dealing with third countries, it was submitted the Secretary of State is faced with a rolling or changing problem, and it was only rational to decide the case, and in effect to give instructions to the Secretary of State in the light of the current factual situation.
34. Support was also sought from the practice not only of the Crown Office but also of this court when sitting as a court of judicial review in admitting fresh evidence comparatively untrammelled by either of the principles set out in, or the spirit of, Ladd v Marshall. But that submission overlooked what was said by Schiemann LJ, with the express approval of the other members of the court, in Turgut at page 323 of the report of that case. Schiemann LJ first referred to cases where fresh evidence was adduced on the part of the applicants, and said that when the factual position had changed in a judicial review application, the applicant could apply for permission to amend his application so as to substitute a new decision. There might indeed be cases where a series of new decisions was taken. Schiemann LJ, however, went on to say this at page 324:

"If the trial takes place before the High Court and either party seeks to appeal, the principles governing the admission by the Court of Appeal of new evidence are different. At that stage it will not unusually be appropriate for an attempt to be made before this court to substitute a new decision for the old and to litigate the legality of that new decision before this court. That is because in principle this court is a court of appeal not a court of trial. The normal rules governing the reception of evidence on appeals will normally apply. However, this court will in exercising its discretion bear in mind the passage in Launder to which I have already referred."

35. Here, as I have said, it is not suggested that there is a fresh decision; it is simply a matter of appeal. The exception to which Schiemann LJ referred in Launder is an exception in support of the rights of the applicant not to be dealt with in a way that in the event will infringe his human rights. That is made quite clear in the speech of Lord Hope of Craighead in that case at [1997] 1 WLR at page 861 A-B.
36. In the present case the question is of the rationality of the Secretary of State's decision on the basis of the evidence that he had and the inquiries that he had made; and not whether that decision could have been taken rationally on the basis of different evidence and other inquiries. The fresh evidence cannot therefore affect the court's assessment of that decision, and much less can it affect the court's assessment of whether Dyson J was right or wrong in law in what it concluded about that decision.
37. For those reasons, therefore, the fresh evidence was in my view not admissible.
38. It was pointed out in the course of argument that new evidence had been considered in this court on an appeal both in Canbolat and in Iyadurai [1998] Imm AR page 470. I would, however, make two points about that. First of all, I do not think in either case there was a contest on the point. Secondly, both cases were cases where fresh evidence had been adduced by the applicant, and the Secretary of State responded to it. The matter was therefore investigated to see if issues arose of the type referred to by Lord Hope in Launder. That is demonstrated by what was said on this point by Lord Woolf MR in Iyadurai at page 481 of the report:

"This is the conclusion reached upon all the material placed before the court. The matter could have been considered and would normally have to be considered at the date on which the Secretary of State formed his opinion, namely 28 January 1998. However, the applicant's case at that date was no stronger than it was at the time of the hearing before this court and in those circumstances it was sensible to look at the whole material as was done in Canbolat rather than to confine attention to the precise material which was available to the Secretary of State."

39. That limited approach does not in my judgement extend to a case where the Secretary of State seeks to make rational a decision that when it was originally taken was irrational.
40. Although we did not need to hear Miss Harrison or Mr Scannell on the application or on the appeal at large, I would wish to commend the very well-informed skeleton argument, containing much cogent learning, that was produced on the fresh evidence issue by Miss Harrison on virtually no notice at all, over a Bank Holiday weekend. It was most regrettable that the Secretary of State's delay in making her application to adduce this evidence forced that task on her, and in those circumstances.
41. LORD JUSTICE JONATHAN PARKER: I agree that these appeals must be dismissed for the reasons which my Lord has given. I would also respectfully associate myself with his observations concerning the Secretary of State's application to adduce fresh evidence.
42. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismissed with costs subject to detailed assessment. (Order does not form part of approved judgment)