Three Pakistani asylum seekers challenged the designation of Pakistan as a 'White List' country with no general serious risk of persecution. The Court of Appeal upheld the finding that Pakistan's inclusion was unlawful, given compelling evidence of persecution of women and Ahmadis, despite the Order having received parliamentary approval.
Background
Three Pakistani citizens — Asif Javed (an Ahmadi), Abid Ali (a Sunni Muslim), and Zulfiqar Ali (a former MQM supporter) — sought asylum in the United Kingdom. Each had his claim certified by the Secretary of State under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended), read with the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996. Pakistan was designated in the Order as a country in which there was ‘in general no serious risk of persecution’, placing it on the so-called ‘White List’. The effect of certification was to subject the applicants to an expedited procedure which, crucially, deprived them of any right of appeal from a Special Adjudicator. The Secretary of State had already conceded or accepted that the individual decisions of the Special Adjudicators were irrational. The central issue on appeal was whether the Order was valid insofar as it designated Pakistan.
The Issue(s)
The Court of Appeal had to determine two principal questions:
1. Scope of judicial review of the Order
To what extent could the Court review the validity of a statutory instrument approved by affirmative resolution of both Houses of Parliament? The Secretary of State argued that Article 9 of the Bill of Rights 1689, together with the common law principle of respect for parliamentary decision-making, restricted judicial review to cases of bad faith or manifest absurdity.
2. Legality of Pakistan’s designation
Was the evidence available to the Secretary of State capable of supporting a rational conclusion that Pakistan was a country ‘in which there is in general no serious risk of persecution’, particularly having regard to the treatment of women and Ahmadis?
The Parties’ Arguments
The Secretary of State’s case
Mr Pleming QC, for the Secretary of State, submitted that binding authority — principally R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240 and R v Secretary of State for the Environment, Ex parte Hammersmith LBC [1991] 1 AC 521 — established that a court could only review such an Order where the Secretary of State had acted in bad faith or ‘had taken leave of his senses’. He further submitted that the Order’s approval by both Houses of Parliament precluded the Court from examining the underlying evidence. In the alternative, he argued that even if the Court could review the evidence, the Secretary of State was entitled to reach the conclusion he did, and that nothing subsequent to the Order required Pakistan’s removal from the list.
The Respondents’ case
Counsel for the respondents argued that no reasonable Secretary of State, properly directing himself, could have concluded there was in general no serious risk of persecution in Pakistan, having regard particularly to the evidence concerning the position of women and Ahmadis. They further submitted that whatever position may have obtained in 1996, the decision of the House of Lords in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 made it impossible to sustain Pakistan’s designation.
The Court’s Reasoning
Judicial review of subordinate legislation approved by Parliament
The Court of Appeal firmly rejected the submission that Article 9 of the Bill of Rights or any wider common law principle precluded judicial review of the Order. Lord Phillips MR, delivering the judgment of the Court, drew a fundamental distinction between primary and subordinate legislation:
Primary legislation that requires subordinate legislation to be approved by each House of Parliament does not thereby transfer from the Courts to the two Houses of Parliament, the role of determining the legality of the subordinate legislation.
The Court cited Wade on Administrative Law (8th ed.) with approval:
Even where, as is often the case, a regulation is required to be approved by resolutions of both Houses of Parliament, it still falls on the ‘subordinate’ side of the line, so that the court may determine its validity. Only an Act of Queen, Lords and Commons is immune from judicial review.
The Court endorsed the earlier concessions recorded by Mustill LJ in R v Secretary of State for the Environment, Ex parte GLC and ILEA (unreported, 3 April 1985), accepting that the court has jurisdiction to quash an Order on the grounds that it is ultra vires, that a statutory precondition has not been met, or that the Secretary of State misdirected himself as to his powers or the applicable law.
Distinguishing Nottinghamshire and Hammersmith
The Court declined to treat the dicta of Lord Scarman and Lord Bridge in those cases as establishing a universal principle applicable to all subordinate legislation approved by affirmative resolution. Those cases concerned national economic policy — a field of distinctly political judgment where judicial review on rationality grounds was, in practice, essentially impossible. The Court held:
The question that Lord Scarman and Lord Bridge were focusing upon was that of justiciability rather than jurisdiction. The extent to which the exercise of a statutory power is in practice open to judicial review on the ground of irrationality will depend critically on the nature and purpose of the enabling legislation.
The Court endorsed Auld LJ’s observations in O’Connor v Chief Adjudication Officer [1999] ELR 209:
It is wrong to deduce from those dicta a notion of ‘extreme’ irrationality. Good old Wednesbury irrationality is about as an extreme form of irrationality as there is.
The correct analytical framework
The Court identified that the challenge was properly one of legality rather than rationality. The Act only entitled the Secretary of State to designate countries where the evidence enabled him rationally to conclude there was ‘in general no serious risk of persecution’. Whether that state of affairs pertained was a question of fact. However, the Court acknowledged a considerable margin of appreciation, given the imprecision of the statutory language:
If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country.
The Court also rejected the suggestion that parliamentary approval could verify the factual accuracy of the designation, noting that neither House could amend the Order and that the debates — which made no mention of the position of women — could not be treated as a proper evaluation of the evidence.
The evidence: women in Pakistan
The Court drew extensively on the findings of the House of Lords in Islam and Shah, which established that women in Pakistan constituted a ‘particular social group’ under the Refugee Convention. The evidence demonstrated widespread discrimination against women, domestic violence, failure of state protection, and discriminatory criminal laws. The Court quoted Lord Steyn’s speech:
Notwithstanding a constitutional guarantee against discrimination on the grounds of sex a woman’s place in society in Pakistan is low. Domestic abuse of women and violence towards women is prevalent in Pakistan… The distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by the state.
Lord Hoffmann’s observation was also cited:
In Pakistan there is widespread discrimination against women… Woman who were victims of rape or domestic violence often found it difficult to obtain protection from the police or a fair hearing in the courts.
The Court concluded:
While it is true that the House of Lords was not directly concerned with the question of whether women in Pakistan were in general at serious risk of persecution, we are in no doubt that their findings demonstrated that among women in Pakistan there was in general a serious risk of persecution.
The evidence: Ahmadis
The Court noted that the evidence regarding Ahmadis, taken alone, might not have been incompatible with the Secretary of State’s conclusion, but it added weight to the overall finding of irrationality when considered alongside the position of women.
Conclusion on legality
The Court held that the Secretary of State had not provided any adequate explanation of how he could conclude, on the material before him, that there was in general no serious risk of persecution in Pakistan:
Had he applied the correct test to that evidence we do not consider that he could reasonably have reached this conclusion.
Practical Significance
This decision is of considerable importance in several respects. First, it establishes definitively that subordinate legislation approved by affirmative resolution of both Houses of Parliament remains fully amenable to judicial review on grounds of illegality and irrationality; parliamentary approval does not immunise delegated legislation from scrutiny. Secondly, it clarifies that the dicta in Nottinghamshire and Hammersmith concerning the limited scope for review are context-specific to national economic policy and do not establish a general principle applicable to all affirmatively approved instruments. Thirdly, the decision demonstrates that a factual precondition to the exercise of a statutory power — here, the existence of a state of affairs regarding persecution — must be rationally supportable by the evidence, and the Court retains the function of assessing whether that precondition is met. The judgment also underscores the importance, in asylum law, of properly accounting for persecution by non-state agents where the state is unable or unwilling to provide protection.
Verdict: The appeal by the Secretary of State was dismissed. The Court of Appeal upheld Turner J’s ruling that the inclusion of Pakistan in the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 was unlawful, confirming the declarations and quashing orders granted at first instance. The Secretary of State was ordered to pay the respondents’ costs, and leave to appeal was refused.
Source: R v Secretary of State for the Home Department, ex p Javed [2001] EWCA Civ 789
