AQ (Somalia) v Secretary of State for the Home Department

This is the Secretary of State's appeal against the determination dated 26 March 2010 of the Upper Tribunal (Immigration and Asylum Chamber), Senior Immigration Judge Macleman, in which the Senior Immigration Judge rejected the submission of the Secretary of State that there had been a material error of law in the determination dated 13 January 2010 of the Asylum and Immigration Tribunal (Immigration Judge Frankish and Sir Geoffrey James, sitting as a non-legal member) in which the AIT have allowed on asylum grounds the respondent's appeal against the Secretary of State's decision to deport him.

The facts are set out in considerable detail in the AIT's determination. For present purposes a brief summary will suffice. The respondent is a citizen of Somalia. There was an issue about his age, but there is no doubt that when he arrived in the United Kingdom in March 2003 and claimed asylum he was an unaccompanied minor. His claim for asylum was refused but he was given leave to remain until 10 April 2006. Between 2005 and 2007 he was convicted of a number of offences, the most serious of which was a conspiracy to wound with intent to commit grievous bodily harm, conspiracy to possess an offensive weapon and violent disorder committed on 28 January 2006, for which he was sentenced to five years detention on 5 September 2007.

The respondent was served with a decision to deport him on 9 September 2009. He appealed against that decision on the basis that he was a refugee and would be persecuted on account of his clan membership if he was to be returned to Somalia. The Asylum and Immigration Tribunal accepted that contention and allowed his appeal against deportation on asylum grounds. They did not, however, deal with his parallel appeal on Article 3 grounds under the European Convention on Human Rights.

The prohibition against a refoulement of refugees is qualified by Article 33.2 of the Refugee Convention, which provides:

Section 72 of the Nationality Immigration and  Asylum Act 2002 (“the 2002 Act”) provides, so far as relevant for present purposes:

The Asylum and Immigration Tribunal considered the implications of Section 72 in paragraph 22 of its determination:

The tribunal then summarised the parties’ submissions on this issue and continued:

It is right to observe that the tribunal's decision not to consider exclusion could not sensibly be described as being only of academic interest on the particular facts of this case because the tribunal went on to say in paragraph 23 of its determination:

The Secretary of State applied for reconsideration. Reconsideration was ordered, and the case came before Senior Immigration Judge Macleman in the Upper Tribunal. In paragraph 3 of his determination the Senior Immigration Judge said, correctly:

The Senior Immigration Judge answered that question in paragraphs 4 to 7 of his determination:

The Senior Immigration Judge then considered various other contentions made on behalf of the Secretary of State. He rejected those contentions and concluded in paragraph 14:

Before leaving the Senior Immigration Judge's determination it is right to note that the Senior Immigration Judge noted the agreement of both representatives that if the finding on minority clan identity was to stand then the appellant would have the residual protection of Article 3.

Regulations 4 and 5 of the Immigration (Notices Regulations ) 2003 are in these terms, so far as material:

“Immigration decision” has the same meaning as in Section 82(2) of the 2002 Act (see regulation 2) and it is common ground that those decisions listed in Section 82(2) include a decision to make a deportation order (Section 82(2)(j)).

Returning to regulation 5:

“5(1) A notice given under regulation 4(1) is to—

(a)

include or be accompanied by a statement of the reasons for the decision to which it relates; and

(b)

if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person."

That was done and various other requirements as set out in regulation 5(3) and 5(4) were complied with.

Regulation 5(5) in these terms:

To complete the picture, the references in the current edition, the 8^th edition, of Macdonald’s Immigration Law and Practice are to be found on pages 914 and 915. In paragraph 12.102 it is said:

Footnote 9 is in these terms. It refers to Section 72(9)(b), and continues:

On behalf of the Secretary of State Ms Patry-Hoskins submits that the Asylum and Immigration Tribunal materially erred in law in concluding that the presumption in Section 72 did not apply unless the Secretary of State issued a certificate under Section 72(9) and the Senior Immigration Judge then compounded that error by concluding not merely that a Section 72(9) certificate must be served if the presumption is to apply, but that the person served with notice of a deportation decision under regulation 4 must be notified of the certificate and its effects in the notice of decision or in an accompanying statement in accordance with regulation 5(5).

So far as the first of those alleged errors is concerned, she submits that this court's decision in TB (Jamaica) [2008] EWCA Civ 977 is clear authority for the proposition that the presumption in Section 72 applies, whether or not the Secretary of State has issued a certificate under Section 72(9).

TB (Jamaica) was a case where, for whatever reason, neither Article 33(2) or Section 72 had been relied upon by the Secretary of State in TB's appeal to the AIT against deportation which the AIT had allowed on both refugee convention and European Convention grounds. The Secretary of State did not appeal against the tribunal's decision, but she then refused asylum and decided to grant TB temporary admission only. The issue before the court was whether the Secretary of State's decision was an abuse of power because she had failed to implement the tribunal's decision having not appealed against it. Bean J held that the decision was an abuse of power and the Court of Appeal upheld his decision.

In paragraph 28 of his judgment, with which Rix LJ and Thorpe LJ agree, Stanley Burnton LJ set out the structure of Section 72. Having done so, he said this in paragraph 29:

TB (Jamaica) was applied by the AIT in the case of IH (Section 72 Particularly Serious Crime) Eritrea [2009] UK AIT 00012. The AIT said in paragraph 25 of its determination in that case:

“The presumptions in s.72 apply in all cases, where applicable, heard by the Tribunal (SSHD v TB (Jamaica) [2008] EWCA Civ 977, at [29] per Stanley Burnton LJ). However, s.72(9) and (10) create a mechanism that may be invoked by the Secretary of State which affects the Tribunal’s process when deciding asylum appeals. Section 72(9) permits the Secretary of State to issue a certificate that the presumptions under the relevant subsection of s.72 apply. When this is done, as it was in this case, s.72(10) requires the Tribunal to determine whether the presumptions do in fact apply to the asylum appeal and, if they do, dismiss the appeal. The effect is to alter the normal (and perhaps more natural) way of dealing with a case: first, deciding whether the individual is a refugee; and secondly, only if he is, deciding whether notwithstanding that he may still be refouled because Art 33(2) applies. In cases where a certificate is issued under s.72(9), the refoulement issue is decided first and only if it does not apply can the Tribunal consider whether the individual is in fact a refugee because he has a well-founded fear of persecution for a Convention reason. Of course, in practice the evidence and any risk on return would need to be considered in order to decide whether the

individual’s return would breach Art 3 of the ECHR. The decision of the Panel in this appeal is one such example. Section 72(10) does not prevent this, but does prevent the Tribunal from making a finding that he is a refugee albeit one who can be refouled.”

The compatibility of the presumption in section 72 with Article 33(2), and in particular the question whether the presumption is rebuttable not merely as to danger to the community but also as to the seriousness of the offence, was considered by the Court of Appeal in EA (Serbia) v SSHD [2009] EWCA Civ 630. The issue in the present case did not arise in EA (Serbia) because the Secretary of State had issued certificates under Section 72(9) in both of the cases which were considered by the Court of Appeal (see paragraphs 13 and 111 of the judgment of Stanley Burnton LJ, with whom Hooper LJ and Laws LJ agreed). However, the Court of Appeal did consider and endorse, with one immaterial exception, the AIT's approach to Section 72 in its determination in IH (see paragraphs 2 and 88 of Stanley Burnton LJ's judgment).

So far as regulation 5(5) is concerned, the submission made on behalf of the Secretary of State is very short. Regulation 5(5) is concerned with those cases where the exercise of the right of appeal is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act. Part 5 of the 2002 Act is concerned with immigration and asylum appeals. Section 72 is in Part 4 of the Act, which is concerned with detention and removal. Part 5 of the Act does contain, in Sections 88-99 under the sub-heading “Exceptions and Limitations”, a number of exceptions to and limitations upon the right of appeal under Section 82. Ms Patry-Hoskins submits that regulation 5(5) is concerned with those exceptions or limitations in Part 5 and not with anything which is contained in Part 4 of the 2002 Act, even if it might be described as some form of exception or limitation.

On behalf of the respondent Mr De Mello submitted that, bearing in mind the provisions of paragraph 364 of the Immigration Rules, section 72 could and should be construed so as to require the Secretary of State to issue a certificate under Section 72(9) if the presumption was to be applied. He submitted that the observations of Stanley Burnton LJ in paragraph 29 of TB (Jamaica) were obiter and in any event that they were wrong, and that the observations of the editors of Macdonald in footnote 9 on page 915 of the 8^th edition were correct. There must be a certificate under Section 92(9) if the presumption is to be invoked and the appellant must be told of the effect of that certificate in the regulation 5(5) notice. He submitted that the regulation 5(5) applied because Section 72(9) referred to an appeal under Part 5 of the Act. The right of appeal against a decision to make a deportation order in Section 82(2)(j) is contained in Part 5 of the Act. He sought to support his submissions by reference to Council Directives 2004/83/EC and 2005/85/EC.

Whether or not the proposition in paragraph 29 of TB (Jamaica) that the Section 72 presumption applies whether or not the Secretary of State has issued a certificate under Section 72(9) was obiter, it was, in my judgment, plainly correct. Subsections (1), (2) and (6) in Section 72 set out clearly the presumption that is to be applied generally; there is no suggestion that the application of that presumption is to be subject to the certification process in subsections (9) and (10). Subsections (9) and (10) merely provide a self-contained procedural code which, as the tribunal observed in the case of IH, reverses the normal course of an appeal in those cases where a certificate is issued, but the Secretary of State is certainly not under any obligation to issue a certificate in order to bring the presumption into play.

As Stanley Burnton LJ said, a certificate has the limited procedural effect of requiring the tribunal to first address the certificate and any issue as to the rebuttal of the presumption which is of general application, but it is to be noted that the appellant may rebut not merely the presumption of dangerousness but also the presumption of serious criminality (see the decision of the Court of Appeal in EN (Serbia)).

It seems to me that this conclusion follows inexorably from the plain wording of Section 72, and the provisions of Rule 364 are, with respect to Mr Mello's submissions, of no relevance whatsoever to that question of interpretation. On any basis, what is said in a rule could not displace the clear meaning of primary legislation and the meaning of Section 72 is plain.

It is also right to observe that neither the text on page 914 nor footnote 9 on page 915 of Macdonald provides any support for the proposition that the presumption in Section 72 applies only if there has been certification under Section 79(9). Indeed the text that I have read out is entirely contrary to that proposition.

Turning then to the only remaining issue -- that is the proposition in footnote 9 that an appellant served with notice of deportation where a Section 72(9) certificate has been issued must be notified of the certificate and its effects in accordance with regulation 5(5), I have no hesitation in saying that, with the greatest respect to the learned editors of Macdonald, that proposition is simply wrong. Even if a certificate under Section 79(9) can be described as imposing a restriction on the right of appeal under Section 82(2)(j) (which is of course within Part 5 of the Act), it is a "restriction" which is imposed by Part 4 of the Act and not by an exception or limitation by virtue of a provision of Part 5. Regulation 5(5) applies to the exceptions and limitations that are listed in Sections 88 to 99 in Part 5 of the Act.

The provisions in the directives referred to by Mr De Mello are, in my judgment, of no assistance in the present case, principally because they are concerned to provide procedural protection to those who have been given refugee status where that status is being withdrawn by the Secretary of State. In effect, Mr De Mello invites us to read regulation 5(5) as though it said:

There are, furthermore, good practical reasons why the issuing of a certificate under Section 72(9) -- if the Secretary of State decides to adopt that course -- may postdate the regulation 4 notice, for example where in response to a decision to make a deportation order an appellant raises, perhaps for the first time, a refugee claim, to which the Secretary of State then responds by serving a certificate under section 72(9) as well as relying upon the general presumption that is contained in Section 72(1), (2) and (6).

For these reasons I am satisfied that both the Asylum and Immigration Tribunal and the Senior Immigration Judge materially erred in law in the respects that I have described and in failing to consider the presumption in Section 72. Although Ms Patry-Hoskins submitted that it was "obvious" that this appellant could not rebut the presumption, this is a case where in my judgment it would be right to remit the matter to the First Tier Tribunal in order to decide whether or not this appellant is able to rebut the Section 72 presumption. Although the Asylum and Immigration Tribunal did not deal with the appellant's Article 3 appeal, it is common ground that the finding of clan membership, which founded the appellant's successful asylum claim, will also entitle him to Article 3 protection. Thus the only issue would be whether or not he is able to rebut the presumption in Section 72. All the other factual findings of the Asylum and Immigration Tribunal are to be preserved.

I agree.

I also agree.