2020 Statelessness & Citizenship Review 2(1) In E3 and N3, the Court plainly appreciated the different context of Lord Wilson’s observations in Al-Jedda. 28 But the effect of the statutory duty is nevertheless identified in minimising terms, with the difference to Al-Jedda being that ‘satisfied’ had to have at least some minimal significance, and citing Hashi, the initial ‘satisfied’ burden would be ‘comparatively easy’ for the Secretary of State to comply with. 29 This, however, seems to undermine the balance built into the statute by inclusion of the s 40(4) BNA 1981 restraint. It also creates potential friction with a line of domestic administrative law authorities imposing objective standards, where judgments are taken for the State under provisions that admit of judgment or satisfaction as to a particular matter. In Office of Fair Trading v IBA Health Ltd, the CA held the statutory phrase ‘is satisfied’ meant that the Court must enquire into whether that belief was ‘reasonable and objectively justified by relevant facts’. 30 In Secretary of State for Education and Science v Tameside Metropolitan Borough Council (‘Tameside’), the House of Lords considered an appeal concerned with a requirement that the Secretary of State be ‘satisfied’, that a local authority or school governors ‘have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act’. 31 Of the ‘subjective language’ employed in the statute, Lord Wilberforce observed: This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge. 32 In Secretary of State for the Home Department v Javed (‘Javed’), accelerated appeal procedures applied for persons originating in states designated by order of the Secretary of State as those ‘in which it appears to him that there is in general no serious risk of persecution’. 33 His order designating Pakistan was found unlawful at first instance and he appealed to the CA. The judgment of the Court, delivered by Lord Phillips MR, citied the Tameside case and again rejected the proposition that the language ‘in which it appears to him’ legitimised subjective or precipitate judgment: The Secretary of State did not argue that the words ‘it appears to him that’ empowered … a purely subjective approach to designation; such an argument would have been untenable: see [Tameside] per Lord Wilberforce. The Act only entitled the Home Secretary to designate countries or territories in respect of which 28 29 30 31 32 33 E3 and N3 (n 3) [57]. ibid [59], citing Hashi (n 6) [23] (emphasis added). [2004] EWCA Civ 142, [45]. [1976] 3 WLR 641. ibid 665. R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129, [55]. 170