Dube v Secretary of State for the Home Department

If, when refusing a claim to remain in the United Kingdom (whether as a refugee or under ECHR or both), the Secretary of State certifies the claim under paragraph 9 of Schedule IV to the Asylum and Immigration Act 1999 (“the 1999 Act”) and the adjudicator, when dismissing the claimant’s appeal against that refusal, agrees with the opinion expressed in the certificate, can the Secretary of State subsequently withdraw his certificate and thereby allow the appellant a further appeal to the Immigration Appeal Tribunal in respect of that claim? That is the issue arising on this appeal and, although its resolution can no longer affect the respondent, it is an issue which will inevitably affect others and which therefore we have thought it right to determine.

Keith J in the court below held on 15^th October 2002 that the Secretary of State does indeed have this power of withdrawal and he further held, on the particular facts of the case, that the Secretary of State acted irrationally in failing to exercise it. On this appeal, brought by permission of Scott Baker LJ, the Secretary of State challenges both conclusions although, as will appear, we need consider only the first.

With that brief introduction let me at once set out the most directly relevant parts of Schedule IV to the 1999 Act.

Paragraph 22(1) provides, so far as material:

“… any party to an appeal … to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.”

An appeal to an adjudicator is an appeal under Part IV of the 1999 Act.

Paragraph 9 provides:

“(1)

This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which -

(a)

sub-paragraph (3), (4), (5) or (6) applies; and

(b)

sub-paragraph (7) does not apply.

(2)

If, on an appeal to which this paragraph applies, the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

…

(8)

‘Contrary to the Convention’ means contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention”

I turn now to set out the facts of the case to the limited extent that these remain relevant. I gratefully take them from the judgment below.

The respondent comes from Zimbabwe. He is a member of the Ndebele tribe. He claims that he was persecuted as a result of his membership of a pressure group, the Umkhosi Kazulu, which seeks compensation for victims of atrocities against the Ndebele tribe in Matabeleland in the 1980s. Eventually he fled from Zimbabwe, arriving in the United Kingdom on 13 August 2001. On his arrival he applied for permission to enter the United Kingdom as a visitor, but when his application was refused, he claimed asylum, contending that his return to Zimbabwe would constitute a breach by the United Kingdom of its obligations under the Refugee Convention (the asylum claim). In addition, it was contended that his return to Zimbabwe would constitute a breach by the United Kingdom of his human rights under ECHR (the human rights claim).

These claims were refused by the appellant Secretary of State on 20 August 2001 and the respondent was therefore again refused leave to enter the United Kingdom. The Secretary of State also issued a certificate under paragraph 9 of Schedule IV to the 1999 Act. That certificate was (a) that the asylum claim was one to which paragraph 9(6)(a) applied, because the asylum claim had been made after the respondent had been refused leave to enter the United Kingdom under the Immigration Act 1971, and (b) that that claim was not one to which paragraph 9(7) applied, because the evidence adduced in its support did not establish a reasonable likelihood that the respondent had been tortured in the country to which he was to be sent. No comparable certificate was issued by the Secretary of State relating to the respondent’s human rights claim, presumably because the question of certifying it had not been addressed.

The respondent appealed against the Secretary of State’s decision to refuse him leave to enter on 20 August 2001, an appeal which was dismissed on 15 October 2001. In dismissing it the adjudicator concluded that the respondent’s return to Zimbabwe would not involve a breach of the Refugee Convention. He did not believe the respondent’s story and he agreed with the opinions expressed in the Secretary of State’s certificate. One reason why he did not believe the respondent’s story was because there was no objective evidence that members of the Umkhosi Kazulu were currently being persecuted. Indeed, the objective evidence was to the contrary, and the adjudicator referred to an announcement made by President Mugabe in 1999 that the government was willing to compensate the families of the many thousands of people who had been killed during the insurgency in Matabeleland in the 1980s.

Following the dismissal of his appeal, the respondent instructed new solicitors and they submitted fresh evidence to the Secretary of State which was said to cast serious doubt on the adjudicator’s conclusions, in particular as to whether members of the Umkhosi Kazulu were being persecuted. The new solicitors also made an application for judicial review in respect of the Secretary of State’s certification of the asylum claim.

It is convenient at this stage to note the governing authority on the effect of partial certification by the Secretary of State. At the time of the adjudicator’s determination it was the IAT’s starred decision in Zenovics -v- Secretary of State for the Home Department which held that even if, as here, the Secretary of State has certified only the asylum claim, if that certificate is upheld by the adjudicator the appellant is not entitled to appeal to the IAT against the dismissal of his human rights claim either. The Tribunal felt compelled to that conclusion by the language of paragraph 9, but it was so concerned about the unfairness which this result produced that it requested the Secretary of State to adopt the policy of certifying either both claims or neither.

On 7 March 2002, however, the Court of Appeal allowed Mr Zenovics’ appeal from the Tribunal’s decision: R -v- Secretary of State for the Home Department ex parte Zenovics [2002] EWCA Civ 273. The effect of their judgment is that the certification of the appellant’s asylum claim does not prevent him from appealing to the IAT against the adjudicator’s determination on the ground that his human rights claim should have been upheld. The Court of Appeal construed paragraph 9(2) as if there were added at the end: “in respect of that claim”.

Following Zenovics the Immigration Appellate Authority wrote to the respondent’s solicitors in the present case informing them that he now had a right to appeal to the Tribunal in respect of his human rights claim within ten days. The respondent exercised that right and in due course the IAT gave him leave to appeal, no doubt in the light of the fresh evidence on which he was relying. The appeal was heard on 25 September 2002 and judgment was reserved, that being the position when the present challenge was heard by Keith J in October.

When finally the IAT’s determination was promulgated on 30 January 2003, the appeal was dismissed and it is that dismissal which has rendered the present appeal academic so far as this respondent is concerned. Before Keith J, however, whilst there remained a prospect of success on the appeal to the IAT, the respondent was anxious that it should encompass too the appellant’s asylum claim. That is understandable. An immigrant is in a better position if permitted to remain in the United Kingdom as a refugee than as someone whose human rights would be infringed if he were returned to his home country. As a refugee he is likely to be given indefinite leave to remain, rather than four years’ exceptional leave, and entitled also to enhanced rights of family reunion. See too in this connection paragraph 72(ii) and (iii) of this court’s decision in Saad, Diriye and Osorio -v- Secretary of State for the Home Department [2002] INLR 34, 52-53.

By the time the respondent’s judicial review application came before Keith J the decisions under challenge were (a) the failure of the Secretary of State to withdraw the certificate on 2 October 2001 at the hearing on the respondent’s appeal to the adjudicator, and (b) the decision of the Secretary of State not to withdraw the certificate after the Court of Appeal’s judgment in Zenovics on 7 March 2002.

The challenge to the first of those decisions was based on the policy adopted by the Secretary of State to avoid the unfairness recognised by the IAT when construing paragraph 9 as they did in Zenovics. That policy contained transitional arrangements as follows:

“Where these cases come before the [Immigration Appellate Authority], the Presenting Officer should consider whether the human rights claim merits certification. If it does, [he] should inform the adjudicator of that fact and explain that the asylum certificate is therefore being maintained. The [Presenting Officer] should not actually ‘certify’ the human rights claim but simply inform the adjudicator that it merits certification; if the adjudicator agrees [with] the asylum certificate, both aspects of the claim are prevented from being appealed to the Tribunal. If the human rights claim does not merit certification, the Presenting Officer should withdraw the asylum certificate. This approach is consistent with comments made in Zenovics by Mr Justice Collins: ‘We would hope that the Secretary of State, if necessary through the [Home Office Presenting Officer], would decide whether to maintain the certification as applicable to both claims … or to withdraw it’.”

There being no evidence in the present case as to whether the Presenting Officer did or did not consider whether to withdraw the certificate before the adjudicator in compliance with that policy, the judge assumed in the respondent’s favour that he did not; he nevertheless dismissed the challenge against this first decision on the basis that “the Presenting Officer would inevitably have concluded that since in the Secretary of State’s opinion the asylum claim merited certification so too would the human rights claim”.

The judge, however, upheld the challenge to the second decision, the Secretary of State’s decision not to withdraw the certificate following the Court of Appeal’s judgment in Zenovics (some five months after the adjudicator’s determination in the present case). The critical part of the judgment for present purposes is paragraph 20 in which Keith J concludes that there is indeed power in the Secretary of State to withdraw the certificate even after it has been upheld by the adjudicator on appeal:

“20.

I turn to the argument that the Secretary of State should have withdrawn the certificate after the Court of Appeal’s judgment in Zenovics. Mr Andrew Hunter for the Secretary of State argued that, once the certificate had been confirmed by the adjudicator, the Secretary of State did not have the power to withdraw it. That argument is based on the language of para. 9(2): if an appellant has no right of further appeal to the Tribunal once the adjudicator has confirmed the certificate, it is the fact of that certificate which has barred the appeal, and the Secretary of State has no further say in the matter. I cannot go along with that argument. Para. 9(2) proceeds on the assumption that the Secretary of State maintains the opinion expressed in the certificate. Mr Hunter accepted, of course, that if the Secretary of State changes his mind before the appeal is heard he can withdraw the certificate then. Why should he not be able to withdraw the certificate after the appeal has been heard if it is only then (perhaps in the light of new evidence) that he changes his mind on the matters to which the certificate relates? I would only go along with Mr Hunter’s argument if I felt that the statutory language compelled me to. In my opinion it does not. Para. 9(2) deals, I think, only with cases in which the Secretary of State maintains his opinion. It does not seek to provide what is to happen if he decides not to. It follows that I do not regard para. 9(2) as amounting to a statutory bar on the Secretary of State’s power to withdraw the certificate even if the adjudicator has previously confirmed it.”

For my part I have the greatest difficulty with that conclusion. On a plain reading of paragraph 9(2) it dictates that if the adjudicator agrees with the certificate then the appellant has no right of appeal to the IAT. That meaning is unaffected by this court’s decision in Zenovics, with which I respectfully agree, that the right of appeal is lost only in respect of whatever claim was in fact certified. Zenovics, indeed, so far from affording any support for the respondent’s argument in this case, expressly recognised, as Keith J below noted, “that one effect of its decision would be the possibility of inconsistent findings following a successful appeal on the human rights claim while a claim on the asylum claim was barred. The Court held [in paragraph 32 of its judgment] that this was no more than a ‘feature of any appellate system’”.

True, the Secretary of State can withdraw his certificate at any time before the adjudicator agrees with it. But that does no violence to the language of paragraph 9(2): it merely removes the certificate and thus the possibility of the adjudicator agreeing with it. Once the adjudicator has agreed with the certificate, the Secretary of State has no further function to perform with regard to certification. Indeed, as Mr Hunter rightly points out, even were he to purport to “withdraw” his certificate at that stage, this could have no effect; his withdrawal would merely beat the air.

Recognising this, Ms Harrison for the respondent submits that by the same token that the Court of Appeal in Zenovics added five words to paragraph 9(2) to achieve the construction they favoured in cases of partial certification, so too here the court should add a few more words to the provision, namely: “unless subsequently the Secretary withdraws his certificate.”

The consequences of this, however, would be remarkable. It would empower the Secretary of State to withdraw his certificate (a) at any future date and however long , therefore, after the appellant’s right of appeal to the IAT had apparently been lost, (b) irrespective of whether there had been total or partial certification, and (c), even in cases of partial certification, irrespective of whether the appellant had brought an appeal to the IAT in respect of the uncertified claim. Even assuming, moreover, as I do, that the Secretary of State would not choose to exercise such a power save for good and sufficient reason (perhaps in a case like the present), a whole new field of prospective judicial review challenge would be opened up to disappointed appellants.

There would accordingly need to be compelling reasons for distorting the legislation in the way proposed so as to create this further power in the Secretary of State. What, then, are these reasons - reasons which the judge below thought so powerful that he would only construe paragraph 9(2) as including the power “if I felt that the statutory language compelled me to”.

The only reason I can see why it might be thought desirable for the Secretary of State to be able to withdraw his certificate after its confirmation by the adjudicator would be in a case precisely like the present where (a) there was partial certification only, (b) following the certificate’s confirmation by the adjudicator, further evidence came to light on the basis of which the IAT gave leave to appeal, and (c) that evidence was likely to affect the appellant’s right to asylum no less than his human rights claim. In such a case it might indeed be thought convenient that the IAT, if minded to allow the human rights appeal, should be able also to allow an appeal against the refusal of asylum. That, however, seems to me as far as it goes and it is a long way from concluding that there is any real need for such a power. Take this very case and assume that the IAT, instead of dismissing the respondent’s human rights appeal, had in fact allowed it. Were the logical consequence of that to be that the respondent was also entitled on the IAT’s findings to refugee status, it seems to me that the Secretary of State would then be bound either to recognise that fact and grant asylum, or at the very least to accept that there were grounds for a fresh asylum claim which would then have to be determined and, if refused, would open up fresh appeal rights.

None of the authorities put before us by Ms Harrison did I find helpful. None suggested that there is anything in the way of a human rights objection to a fast-track system of appeal represented in the United Kingdom by the Secretary of State’s power to certify claims under paragraph 9 (such certificate being challengeable before the adjudicator on appeal). Perhaps the nearest in point is Secretary of State for the Home Department -v- Asifa Saleem [2001] 1 WLR 443 where this court upheld Hooper J’s first instance decision that rule 42(1)(a) of the Asylum Appeal (Procedure) Rules 1996 is ultra vires and invalid insofar as it purports to preclude an appeal from the adjudicator to the IAT even where the intending appellant does not in fact receive notice of the adjudicator’s determination until after the five days allowed for an appeal application to be made. Ms Harrison sought to rely in particular upon the following passages in Hale LJ’s judgment:

“55.

… There are now a large number of tribunals operating in a large number of specialist fields. Their subject matter is often just as important to the citizen as that determined in the ordinary courts. … In disputes between citizen and State they are established because of the perceived need for independent adjudication of the merits and to reduce resort to judicial review. This was undoubtedly the motivation for grafting asylum cases onto the immigration appeals system in 1993. In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts.

…

60.

[Counsel for the Secretary of State] also argues that the effect [of rule 42(1)(a)] is not so drastic because of the alternative remedies available to someone such as Mrs Saleem. She can make a fresh application for asylum. …

61.

This argument did not impress Hooper J. The intention of the legislature in granting asylum seekers rights of appeal to the immigration appellate authorities was there should be a binding adjudication of the merits of their case by an independent adjudicator who was able to hear the oral evidence of the appellant. Credibility is a vital issue in many asylum appeals …. yet those making decisions on behalf of the Secretary of State are not those who interview the asylum seekers. The Secretary of State will only consider a fresh application if it raises new material not available before.”

I cannot read those paragraphs, pertinent though of course they are to the striking down of subordinate legislation as ultra vires the enabling power, as providing any support for the respondent’s contention that the court here should construe the primary legislation in a way that seems to me impossible. With regard to paragraph 55 of Hale LJ’s judgment, the right to challenge the Secretary of State’s certificate before the adjudicator does provide “a right of access to tribunal or other adjudicative mechanism established by the State”; paragraph 55 can hardly be suggesting there must always be a right of access to two successive adjudicative bodies. As for paragraphs 60 and 61 of Hale LJ’s judgment, there are two points to be made. First, that the certification process leaves intact the scope for “a binding adjudication of the merits of [the asylum seeker’s] case by an independent adjudicator who was able to hear the oral evidence of the appellant”. Secondly, that the right to make a fresh application for asylum should not be belittled. True, a fresh application will generally only be considered if it raises new material not available before, but there are exceptions made to that approach, not least where the earlier failure to produce the material is reasonably explicable or where the new material is sufficiently convincing that it plainly ought to be considered. In any event the availability of a fresh asylum claim (which could relate to new material coming to light at any time, even after an IAT hearing) cannot logically determine whether or not a second appeal should lie to the IAT.

I would summarise my conclusions as follows. Paragraph 9(2) cannot be construed, but rather would have to be re-drafted, to accord to the Secretary of State an effective post-adjudication power to withdraw his certificate. There is no sufficient reason to torture the legislation in this way, least of all at a time when (a) partial certification cases are rapidly passing into history and (b) fresh legislation is imminent under which this whole scheme for fast-track certification is expected to be abolished.

I would accordingly allow the Secretary of State’s appeal and rule, contrary to the declaration made below, that the Secretary of State has no power to withdraw a paragraph 9 certificate once the adjudicator has promulgated a decision agreeing with the opinion expressed in the certificate.

I agree.

I also agree.