ImmigrationAsylum - fear of persecution by non-state agents - whether third countries safe given approach to such persecutionR v Secretary of State for the Home Department, ex p Adan; R v Same, ex p Aitseguer: HL (Lord Slynn of Hadley, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote): 19 December 2000Two asylum seekers from Somalia and Algeria travelled through Germany and France respectively to the United Kingdom, where they sought asylum on the ground that they feared persecution by non-state agents in the countries of origin.

The secretary of state issued certificates pursuant to s.2(2) of the Asylum and Immigration Act 1996 authorising their return to Germany and France as safe third countries where their asylum claims would be heard in accordance with the Convention on the Status of Refugees (1951) (Cmnd 9171) and (1967) (Cmnd 3906).The asylum seekers sought judicial review on the grounds that as Germany and France did not recognise persecution by non-state agents as qualifying for protection under art.1A(2) of the convention, at least if the state itself was not complicit in the persecution, they were not safe countries to which the asylum seekers could lawfully be returned.In the first case the application was dismissed and the asylum seeker appealed.

In the second case the application was allowed and the secretary of state appealed.

The Court of Appeal, having heard the two cases together, allowed the asylum seekers' appeal and dismissed the secretary of state's appeal.

The secretary of state appealed.David Pannick QC and Steven Kovats (instructed by the Treasury Solicitor) for the secretary of state; Nicholas Blake QC and Stephanie Harrison (instructed by Wilson & Co.) for the asylum seeker in the first appeal; Andrew Nicol QC and Mark Henderson (instructed by Howe & Co) for the asylum seeker in the second appeal.Held, dismissing the appeal, that s.2(2)(c) of the 1996 Act was drafted in plain words, and the obvious and natural meaning of 'otherwise than in accordance with the convention' referred to the meaning of the convention as properly interpreted, so the inquiry must be into the meaning of the convention approached as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions; that the Court of Appeal correctly concluded that there was only one true interpretation of art.1A(2) of the convention, namely that those who feared persecution from factions within the state were afforded protection under the convention if the state was unable to protect them from such persecution; that the secretary of state materially misdirected himself, and his decisions to return the asylum seekers to Germany and France were quashed.