Sandhu, R (on the application of) v Secretary of State for the Home Department

In this case the claimant challenges the decision of the Secretary of State to refuse his human rights claim under Article 8 of the European Convention on Human Rights and a certificate issued by the Secretary of State under section 73(8) of the Immigration and Asylum Act 1999. Section 73 applies (under subsection (1)) where a person has appealed under the Act and that appeal has been finally determined. Subsection (8) applies (under subsection (7)) if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant. Subsection (8) provides:

“(8)

The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion –

(a)

one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)

the appellant had no other legitimate purpose for making the application.”

Subsection (9) provides that no appeal may be brought under the Act against a decision in respect of which a certificate under subsection (8) has been issued.

The claimant is a citizen of India who arrived in the UK on 15 February 1999 and claimed asylum on arrival. On 3 March 2000 he married a British citizen. On 22 February 2001 the Secretary of State for the Home Department refused his asylum application and gave directions for his removal. In response to a one-stop notice served on the claimant his solicitors stated as additional grounds for his seeking to remain in the UK the following:

“1.

The applicant is married, and there are special circumstances in the applicant’s case. The applicant states that should he be requested to leave the UK then this will be an interference with his family life and this will be a violation of article 8.

2.

The applicant states that his removal will cause hardship to his spouse who is reliant upon him for support and care.

3.

The applicant has no other family abroad and seeks leave to remain on the basis of his marriage.”

The claimant appealed against the Secretary of State’s decision, but neither he nor his representative appeared at the hearing of his appeal on 7 August 2001. No explanation was given for the failure to attend, and the adjudicator said that in the circumstances under paragraph 32(1) of the Immigration and Asylum Appeals (Procedure) Rules 2000 the appeal should be treated as abandoned. She upheld the certificate and dismissed the appeal. The claimant did not appeal against this decision, but some 10½ months later, on 25 June 2002, by which time his wife had had a child, new solicitors acting for him applied, as they said, for a “variation of leave” under Article 8 of the European Convention on Human Rights “on the ground that he is married to a person settled in the United Kingdom and is a father of a British child.” On 27 June 2002 the duty Chief Immigration Officer replied saying that he did not consider the circumstances such as to justify a grant of leave to enter as a spouse. He said that once the necessary travel document had been issued they proposed to remove the claimant to India.

On 7 July 2002 the claimant’s solicitors wrote asserting, wrongly, that the appeal dismissed on 7 August 2001 was in relation to the asylum matter only and the issue of marriage had not been raised. They asked that the decision be reviewed, or alternatively for appeal forms so that appeal could be made under section 65 of the 1999 Act. The letter was acknowledged in a letter of 12 July 2002, which said that it had been forwarded to the Human Rights Support Team in Croydon.

A response from Lunar House at Croydon was given on 25 February 2003 and on the same day detention of the claimant was authorised. In the response the officer said that the issue of the claimant’s marriage could have been raised at the appeal hearing, and, as he had already had an appeal under section 65, no further right of appeal existed. Notice of removal directions was given on 27 February 2003.

On 25 March 2003 the claimant applied for judicial review of the Secretary of State’s decision to remove him from the UK. On the same day a further letter was sent to the claimant’s solicitors on behalf of the Secretary of State. The purpose of the letter was said to be to “clarify the Secretary of State’s position with regard to your client’s marriage and in particular whether his removal from the United Kingdom would amount to a breach of Article 8 of the ECHR.” Having recounted the history of the matter, the letter went on:

“The Secretary of State has reviewed your client’s case but he is not prepared to allow him to remain in the United Kingdom on the basis of his marriage. In reaching this decision, the Secretary of State has had regard to your client’s wife’s medical difficulties. He notes she is said to suffer from an established learning disability and that she cannot read or write. He also notes that she has suffered since 1990 from Bronchial Asthma and requires the use of inhalers. On the information available, however, he does not consider that your client’s wife’s medical condition is so serious as to prevent her from accompanying your client to India. In the alternative, your client’s wife may remain here and support any application your client makes from abroad to return in the proper manner as the spouse of a person settled here. The Secretary of State notes the claim that your client’s wife’s medical difficulties mean that she is reliant on him for support. However, he also notes that she has other family in the United Kingdom to whom she can turn whilst your client is temporarily absent from the country pursuing an entry clearance application.

In considering your client’s case, the Secretary of State has had regard to Article 8 of the ECHR but he would reject any claim that removing your client to India will amount to a breach of this article. Article 8 does not extend to a general obligation on the United Kingdom to respect the choice by married couples of a country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom. Your client is to be removed from the United Kingdom and his spouse and child are free to accompany him, should this be their wish. As stated above, your client’s wife’s medical difficulties are not a barrier to her living in India and at only 11 months old, the couple’s child is young enough to adapt to life there. Consequently, if your client’s wife and child decided to accompany him to India, there would be no interference with their family life. If, however, your client’s wife and child elected not to accompany him, they may remain in the United Kingdom and support any entry clearance application he makes from abroad to return here as a foreign spouse. In these circumstances, the Secretary of State accepts that your client’s family life will have been interfered with. However he is of the opinion that this interference will only be temporary and he submits that the requirement to obtain the correct entry clearance is proportionate to that interference so that any interference under Article 8(1) is justified under Article 8(2).

Your client’s appeal against the decision of 22 February 2002 was finally determined on 17 August 2001. This letter refuses your client’s application of 7 July 2002. The Secretary of State certifies under section 73(8) of the Act that in his opinion, one purpose of your client’s application would be to delay his removal from the United Kingdom and your client had no other legitimate purpose for making it. By virtue of section 73(9) of the Act, no appeal may be brought under the Immigration and Asylum Act 1999 or the Special Immigration Appeals Commission Act 1997 against a decision in respect of which a certificate under section 73(8) has been issued.”

The reference to the claimant’s wife’s medical difficulties was apparently made on the basis of a report from her GP, Dr Menon. The report is dated 8 May 2001 (at the time, therefore, when the claimant’s appeal to the adjudicator was pending). She had been registered with the practice since 19 March 2001, but the doctor said he had medical records for her going back to 1971. The report said that she had an established learning disability, and could not read, write or count. Before moving with her husband to Oldbury, Birmingham, in March 2001 she had lived with her mother in Darlington, Co Durham. Besides her learning disability she had also suffered from bronchial asthma since 1990 and had been on inhaled steroids and broncho-dilaters ever since. The report concluded:

“She is now married and lives with her husband at the above address. She has never lived alone independently and she will not be able to do so now owing to her ESN status. Added to this problem she has also Bronchial Asthma, flaring up now and then. I feel that she will not be able to live on her own and that she will need the assistance of her husband.”

As originally made, the claimant’s application for permission to apply for judicial review related to the Secretary of State’s decision to remove the claimant from the UK. The application was refused on the papers by Collins J, who said that the claim was unarguable, certainly since the section 73(8) certification. Permission was granted, however, when it was renewed before Maurice Kay J, who directed that amended grounds should be served. The amended application now challenges the two decisions contained in the Secretary of State’s letter of 25 March 2003 – refusing the claimant’s application that the direction for his removal should be reconsidered on Human Rights Act grounds, and issuing a certificate under section 73(8) of the 1999 Act.

The claimant’s case is that his human rights have never been judicially considered, as is his right under section 65 of the 1999 Act. He says that section 73(8) requires the Secretary of State to conclude that the purpose of the application was delay and there was no other legitimate purpose; and that the claimant’s purpose in making the application was so clear that it could not conceivably be considered to lack legitimacy. Mr Graeme Kirk submitted that the purpose of the application was clear from the circumstances in which it was made. The claimant had a British wife and child in the UK; he was told to return to India in the uncertain expectation that he might be granted relevant entry clearance for the UK once in India, at some uncertain future date; he was told to accept that his family, including his young British child, could alternatively relocate to India pending the determination of any application he made there notwithstanding the chronic illness of his wife; he had in fact never had a hearing at which his Human Rights had been considered; he had on the admission of the Secretary of State for the Home Department, been denied his human rights, such denial being ‘justified’ (without further reasoning) as falling within the qualification of Article 8(2).

In submitting in the light of these considerations that the claimant’s purpose did not lack legitimacy, Mr Kirk relied in particular on the approach adopted by Keith J in R (Alia) v Secretary of State for the Home Department [2003] EWHC 1881 (Admin). He also relied on the tests promulgated by Burton J in R (Vemenac) v Secretary of State for the Home Department [2002] EWHC 1636 (Admin) and Ouseley J in R (Ngamguem) v Secretary of State for the Home Department [2003] EWHC 1183 (Admin). Those tests were expressly rejected by Mitting J in R (Balamurali) v Secretary of State for the Home Department [2003] EWHC 1183, a decision that is the subject of pending appeal in the Court of Appeal. I will identify later the particular passages on which reliance is placed.

Mr Kirk submitted that the claimant’s human rights have never been judicially determined, contrary to his entitlement in this respect under section 65 of the 1999 Act. He relied on the decision of the Court of Appeal in R (Kariharan) v Secretary of State for the Home Department [2002] EWCA Civ 1102, in which the court held that the right of appeal under section 65 applied in relation to removal directions as much as to the refusal of leave to enter or to remain. Section 65 was to be given a generous construction. At paragraph 24 Auld LJ said:

“… there is force, in a human rights context, in interpreting the word ‘entitlement’ in the phrase ‘entitlement to enter or remain’ in a wider sense than it might otherwise have … [I]f a claimant has a valid human rights claim to stay when he makes it, he is entitled to do so whatever the status of the decision resigned to remove him; he has a section 65 entitlement. Removal directions, whether free-standing or consequent upon some earlier refusal of leave, and whether regarded as a ‘substantive’ decision or administrative machinery, are discretionary and, as such, are capable of being determinative of that entitlement, subject to a section 65 challenge. The section expressly provides that the claimant has only to ‘allege’ violation of his human rights to entitle him to pursue it …” (paragraph 24).

The Secretary of State’s decision was, said Mr Kirk, an unreasonable, inadequate and belated response to a matter that had arisen as a result of the repeated failure to accord to the claimant his section 65 rights. The facts were that the couple had been married for over three years; the claimant’s wife was a British citizen and had been in the UK for 32 years, since she was seven; they had a sixteen month old child who was British and had not lived in any other country; the claimant’s wife suffered from learning disabilities and bronchial asthma and was too ill to travel, to live in India or in any country without the support of the claimant. Notwithstanding these facts, the Secretary of State could do no more than suggest that the claimant should go to India and seek permission for residency from there, and that it was a matter for the claimant whether his wife and son joined him there. In the second paragraph of the letter of 25 March 2003 the Secretary of State accepted that to require the claimant to return to India without his wife and child would be an interference with his human rights, but then said, without further explanation, that such interference would fall within the qualification contained in Article 8(2). Mr Kirk submitted that on the contrary the interference could not be justified on any of the grounds mentioned in Article 8(2). Alternatively, he said, the Secretary of State was in breach of a duty to give reasons for his view that the case fell within Article 8(2).

For the Secretary of State Mr Adam Robb submitted in relation to the challenge to the Secretary of State’s certificate that the correct approach was to read section 73(8)(b) as providing: “the appellant had no other legitimate purpose for making the application at this stage.” The subsection was all about the timing of the application. Time was inherent in the concept of delay, the subject of the preceding paragraph (a). The purpose of certification was to stop not only repetitive claims and subsequent appeals, but also claims which could and should have been made at the outset. The purpose of Part IV of the 1999 Act and the one-stop provisions it contained was to ensure that a person put forward their best case from the beginning and only had one appeal.

Mr Robb submitted that the ways in which Burton J in Vemenac and Ouseley J in Ngamguem had put the construction of the provision was wrong, and that the approach of Mitting J in Balamurali was correct. In Soylemez counsel for the Secretary of State had conceded for the purposes of argument that the Vemenac test was correct whilst reserving the Secretary of State’s right to argue to the contrary.

In the present case, the key facts, said Mr Robb, were that the claimant had already had a section 65 appeal, in which he was obliged to, and did, raise all available grounds, including his marriage; that he had failed to attend the hearing and provided no explanation or justification for his non-attendance; that the adjudicator had dismissed the claim under paragraph 32(1) of the procedure rules and was entitled to do so; and that that determination had not been challenged, nor were there any grounds for doing so. In such circumstances the Secretary of State was entitled to consider that the claimant had no legitimate purpose in making his second human rights application in June 2002.

Section 73(8) certification was just as applicable in cases where the claimant did not attend the first appeal hearing and the appeal was treated as abandoned as in cases where the claim was dismissed following a substantive consideration. The aim of section 73(8) was to prevent repetitive appeals based on claims that could have been made first time round. That aim would clearly be frustrated if the claimant could appeal, not attend the hearing, make another appeal on the same or substantially the same basis, not attend the hearing, and so on. The construction urged by the claimant would thus entirely frustrate the purpose of section 73 (8).

I deal first with the Secretary of State’s refusal of the claimant’s human rights claim. The question for the court, where it is asserted that a decision of the Secretary of State is contrary to the claimant’s human rights under Article 8, is to determine firstly whether the claimant’s human rights under Article 8 are engaged and, secondly, if they are, whether the Secretary of State has struck the balance fairly between the claimant’s right to respect for his family life on the one hand and the public interests referred to in Article 8(2) on the other. Samaroo and Sezek v Secretary of State for the Home Department [2001] UK HRR 1150 is authority for the second proposition (in particular paragraphs 24 and 35 of the judgment of Dyson LJ); and the test is whether the decision of the Secretary of State is outside the range of reasonable responses to the question as to where a fair balance is between the conflicting interests (see Ismet Ala v Secretary of State for the Home Department [2003] ECHC 521 (Admin), per Moses J at paragraphs 43-44, approved by the Court of Appeal in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716). The primary conclusion contained in the Secretary of State’s letter of 25 March 2003 was that there would be no breach of Article 8 if the claimant were returned to India since Article 8 did not extend to a general obligation on the UK to respect the choice by married couples of the country of their matrimonial residence and, on the information available, there was nothing to prevent the claimant’s wife from accompanying him to India. This conclusion, therefore, was that the claimant’s human rights were not engaged. Although Mr Kirk submitted that the medical evidence suggested that the claimant’s wife was too ill to travel, this is plainly not the case. Dr Menon’s letter of 8 May 2001 (the latest, and the only, piece of medical evidence available) does not say that she is too ill to travel but that she is not able to live on her own.

Mr Kirk relied on the observation of Lord Phillips of Worth Matravers MR in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 that Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow the member expelled (paragraph 55, conclusion (4)). The claimant, however, is clearly not a member of a family that has been long established in the UK. The family in question is the one that he and his wife have established by their marriage. In any event, the Secretary of State concluded, on the material before him, that the wife’s medical difficulties were not a barrier to her living in India and, at only 11 months old, the couple’s child was young enough to adapt to life there. That was a conclusion to which he was manifestly entitled to come. In my judgment he was right, therefore, to conclude that the claimant’s Article 8 rights were not engaged. That is sufficient to conclude against the claimant his challenge to the Secretary of State’s Article 8 decision, and the challenge to the alternative way in which the Secretary of State put it does not arise. Nevertheless, in my judgment the contention of the claimant on this alternative basis must also fail. What the Secretary of State said was that there would be interference with the claimant’s family life if his wife elected to remain in the United Kingdom and support any entry clearance application he might make from abroad to return here as a foreign spouse, but that such interference would only be temporary, so that the requirement to obtain the correct entry clearance was proportionate to that interference. The point being made, it appears to me was that the interference would only be temporary, since either the claimant would make a successful application, in which case he could return, or he would not make a successful application, in which case his wife and child could join him in India. The vulnerability of the claimant’s wife, and her inability to look after herself, is a matter that must give pause to any consideration of the human rights of the family, but it is clear that this is a matter that was taken into account by the Secretary of State. To hold, as the Secretary of State, did that the temporary interference with the claimant’s family life was proportionate to the need to observe the correct entry requirements was not, in my judgment, outside the range of reasonable responses to the question as to where a fair balance lay between the conflicting interests. The challenge to the Secretary of State’s human rights decision fails, therefore, on whatever basis it is advanced.

The provisions of section 73(8), which I set out at the start of this judgment, have been the subject of consideration in four recent cases. The similar wording that appears in section 73(2) was the subject of a fifth decision. Different and conflicting views have been expressed on the meaning of the provisions in these cases. Mr Kirk, as I have said, relied in particular on three of the decisions, and Mr Robb on a fourth. I take the cases in the order in which they were decided.

In Ngamguem (8 July 2000) the claimant was a Cameroon national whose claim for asylum was refused by the Secretary of State. The basis of his claim was that he had been ill-treated when in the custody of security forces in Douala, and that, if he were returned he would be at risk of being killed or subjected to further detention or ill-treatment. An adjudicator dismissed his appeal against the Secretary of State decision on 22 May 2001. Removal directions were given, and on 31 August 2001 the claimant’s solicitors wrote to the Secretary of State enclosing what they said was new and independent documentary evidence and requesting that the removal directions should be cancelled. The next day the Secretary of State replied refusing the request. He said that he doubted the authenticity of the documentation. He certified the application under section 73(8). The claimant sought and received permission to challenge the decisions by judicial review. These were the proceedings that were formally before Ouseley J on 8 July 2002. By then, however, additional material had been put before the Secretary of State, who had replied on 28 June 2002 saying that he maintained his original decision to refuse the application for asylum. He issued a certificate under section 73(8) in relation to his decision of 28 June. Although there was no formal challenge to this decision and its certification, Ouseley J considered what grounds of challenge might be advanced. He concluded that the new material did not affect the adjudicator’s conclusion, so that the Secretary of State’s decision to maintain his original refusal was entirely justified and was not arguably erroneous. He then went on, in a passage relied on by Mr Kirk:

“46.

The last point raised by [counsel for the claimant] was that the Secretary of State erred in certifying the decision. He submitted that where, as here, the claimant had a genuine fear as to his future upon his return, the raising of the fresh application showed that he had a legitimate purpose in so doing and it could not be said that these had been done for the purpose of delay with no other legitimate purpose. I do not for one moment accept that the Secretary of State should regard as a legitimate purpose the raising of an application simply on the grounds that the claimant, albeit genuinely fears for himself upon his return to his home country. In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not the conclusion follows that he is entitled to certify the claim as one made for the purposes of delay with no other legitimate purpose.”

In Vemenac (17 July 2002) a Serb from Croatia had been refused asylum and his appeal to a special adjudicator on asylum and human rights grounds had been dismissed on 31 July 2001. Leave to appeal to the IAT was refused on 30 August 2001. On 8 January 2002 he made a fresh application, putting forward two grounds – firstly that he had formed a relationship with a woman and return would breach his convention rights (by implication under Article 8) and secondly that a new OSCE report showed that the claimant would suffer discrimination in housing if he were returned. On 14 January 2002 the Secretary of State rejected the application. On the first ground he said that there was no evidence of any relationship which could properly be described as family life and on the second ground he said that there was nothing new in the OSCE report. He then certified the application under section 73(8).

The claimant challenged his decision to issue the certificate. Burton J, addressing himself to the meaning of section 73(8), said this:

“19.

What is necessary to justify the Secretary of State’s certification is that in his opinion the appellant had no other legitimate purpose for making the application. There was some discussion as to whether the use of the words ‘other legitimate purpose’ in subparagraph 8(b) suggested that delay itself must also be a legitimate purpose. I do not agree, and indeed the argument was not in the event pursued very strenuously by [counsel for the claimant]. It seems to me that whether the purpose of delay is legitimate or illegitimate does not matter. It is simply a fulfilment of subparagraph (a). But if one has to construe subparagraph (b), there would be commas in the subparagraph surrounding the word ‘legitimate’, i.e. the appellant had no ‘other, legitimate, purpose’ for making the application. The question is whether the Secretary of State was entitled to be satisfied that in his opinion the appellant had no such legitimate purpose for making the application.

20.

I am satisfied after hearing argument that what that means is that the Secretary of State must be shown reasonably to have been satisfied that in his opinion the appellant had no legitimate purpose because the case put forward was so hopeless that it was not properly arguable. That is the basis upon which I have heard [counsel for the claimant] today, and he agreed that that was the basis on which his case should be put forward, and I am satisfied after hearing submissions and argument from both counsel that this was indeed correct.”

At paragraph 24 the judge said that it was hopeless to suggest that the point raised by reference to the OSCE report was new, and at paragraph 28 he said that the Article 8 ground could perfectly understandably have been characterised by the Secretary of State as hopeless. He concluded:

“30.

But my judgment, on the proper construction of this statute, is that the conclusion which the Secretary of State is required to come to is not just that in his opinion the case has no reasonable prospect of success, but that it is not properly arguable and consequently is hopeless, or, put another way, manifestly unfounded. I am entirely satisfied that such was a reasonable conclusion in this case, and I therefore dismiss the application.”

In R (Soylemez v Secretary of State for the Home Department [2003] EWHC 1056 Admin (15 April 03) Davis J had to consider a challenge to a section 73(8) certificate issued by the Secretary of State. He noted (at paragraph 12) that the wording in section 73(8) (and in section 73(2)) was to be contrasted with that in section 72, which imposed restrictions on the right of appeal in the context of a certificate issued under section 11 or 12. Under section 72 (2)(a) the Secretary of State was able to certify that an allegation of breach of human rights was “manifestly unfounded”. Davis J went on:

“12.

…Thus overall the wording of section 73(8) is materially different to that contained in section 72(2). The purpose behind the differentiation in this wording is not altogether clear. Since section 73 is concerned with a situation where the appeal process has been ostensibly determined it may be that its provisions are to be construed against, as it were, a presumption of scepticism. At all events, section 73(8) presupposes the forming of an opinion on behalf of the Secretary of State that, amongst other things, an applicant has no other legitimate purpose for making the application: which is to be contrasted with a certification that an allegation is manifestly unfounded as provided, for example, in section 72(2). However, one common feature of these provisions at least is that plainly an exercise of judgment is involved.

13.

In the present case before me, however, the parties were agreed that there was no substantive distinction to be drawn between the provisions of the two subsections of these two sections in terms of the approach to be adopted by the court. In this context I was referred to the decision of Burton J in the case of Venemac at [2002 Imm AR 613; [2002] EWHC 1636, a case which also involved certification under section 73 (8).”

The judge then quoted the judgment of Burton J. He went on:

“14.

The ultimate decision in Vemenac of course was a decision by reference to its own rather special facts. However, with regard to the approach indicated by Burton J and the construction of section 73(8) counsel appearing on behalf of the Secretary of State before me, was content to accept that that represented the right approach, at all events for the purposes of this case, he making it clear however that the Secretary of State reserved the right to argue otherwise in some other case.

15.

In the light of that concession I am prepared to proceed, (albeit I would for myself note the striking difference in the wording between the provisions of section 73(8) and section 72(2)) on the basis of the approach laid down by Burton J in Vemenac.”

Balamurali (9 May 2003) was a case under section 73(2). The claimant, a Sri Lankan national, was refused asylum and leave to enter on 28 October 1999, and on 29 March 2000 his appeal to an adjudicator on asylum grounds was dismissed. On 14 April 2001 the Secretary of State refused leave to remain. His notice of refusal was accompanied by a one-stop notice issued under the procedure contained in sections 74-77 of the 1999 Act. The claimant completed the one-stop notice form and accompanied it by a statement of his grounds of appeal against leave to remain on human rights grounds. They were that removal to Sri Lanka would endanger his life (Article 2) and he would be at risk of detention and torture (Article 3).

On 12 September 2001 the appeal was dismissed by an adjudicator. She concluded that there were no grounds to fear that, if returned, he would be exposed to a risk of torture. Among the material considered by the adjudicator was a psychiatrist’s report. On 14 July 2002 the claimant applied for exceptional leave to remain, and supported his application with a report from another psychiatrist, which said that there was a high risk of suicide if the claimant was returned, a view that had not been expressed in the earlier psychiatrist’s report. The application letter raised human rights claim under Articles 3 and 8. On 27 September 2002 the Secretary of State set removal directions for 16 October 2002, and on 7 October 2002 the claimant appealed on the human rights grounds. On 14 October 2002 the Secretary of State rejected the claimant’s representations and issued a certificate under section 73(2). The claimant challenged the issue of a certificate.

Subsection (2) of section 73 provides:

“(2)

If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion –

(a)

the appellant’s claim –

(i)

could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)

could reasonably have been made in the original appeal but was not so made;

(b)

one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c)

the appellant had no other legitimate purpose for making the claim.”

Mitting J identified four issues that arose. The third issue was the meaning of “no other legitimate purpose” in section 73(2)(c). On this, he referred to the judgment of Burton J in Vemenac, which was relied on by counsel for the claimant. He went on:

“14.

Having heard the submissions of counsel to me, and having heard their answers to various propositions that I have put to them in the course of the hearing, I respectfully decline to follow Burton J’s analysis of the meaning of the phrase ‘no other legitimate purpose’ and also that of Ouseley J.

15.

‘Legitimate purpose’ seems to me to focus on the purpose for which the claimant makes his claim, not on its soundness nor on the prior availability or lack of availability of material relied on for the first time in his new appeal. Other phrases could easily have suggested either proposition: in section 72 of the 1999 Act the phrase ‘manifestly unfounded’, deals with hopeless claims. In section 73(2)(a)(ii) itself, the availability or lack of availability of material is explicitly addressed. I have struggled to discern what the draughtsman might have had in mind.

16.

[Counsel for the Secretary of State], on instructions, submitted first that what was meant was ‘a good reason why he did not include the claim in his earlier appeal’ but, as I observed, that is already dealt with in section 73(2)(a)(ii), and the words of subsection (2)(c) are not apt to describe that situation. In the end, [counsel for the Secretary of State] submitted that the words were there to accommodate situations not foreseen by the draughtsman as a long-stop against potential injustice. On the submissions that I have heard that seems to me to be the only acceptable construction of that phrase.

17.

[Counsel for the claimant’s] propositions as to the meaning of the phrase would, if correct, frustrate the manifest purpose of section 73, which is to produce finality. I am unable to accept that the draughtsman had those factors in mind when choosing that phrase. The purpose of section 73 is to require the claimants to bring all claims in one appeal, and to achieve finality in determination of that single appeal. Again, if a common law analogy is permitted, the analogy is with issue estoppel as expanded by the rule in Henderson v Henderson (1843) 3 Hare Reports 100.

18.

It seems to me, therefore, that if the Secretary of State is satisfied that the appellant’s claim, in the sense that I have indicated, could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the UK, then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate.

19.

It is common ground that he has a discretion in so doing and that his discretion is governed by administrative law principles. It is not possible in this judgment for me to attempt to identify all factors which the Secretary of State should or may take into account, let alone any factors which he should not take into account, because I have not heard full and considered argument upon the point. The list that follows is, therefore, both incomplete and tentative. But it seems to me that the Secretary of State must take into account two factors: first, the scheme of this part of the Act, which is intended to produce finality resulting from a single appeal; and secondly, by virtue of section 6 of the Human Rights Act 1988, the human rights of the claimant. Factors which it will commonly be appropriate to take into account are likely to be the strength or weakness of any new claim and the reasons why such a claim was not advanced in the original appeal.

20.

Applying the test which results from that analysis of section 73, it seems to me that the Secretary of State’s letter of 14 October 2002, read as a whole, and the certificate which it contains, are unimpeachable. The Secretary of State was undoubtedly right to conclude that the Article 3 claim, that the claimant would be subjected to inhuman or degrading treatment or torture, if returned to Sri Lanka, was raised explicitly in the earlier human rights appeal. It seems to me also that his decision that arguments based on Article 8, arising out of the claimant’s mental health (actual and prospective) if removed, were available to him at the time of the human rights appeal and could reasonably have been advanced then.

21.

It is self-evident that the grounds now relied on had as their purpose the delay in removing the claimant from the United Kingdom either indefinitely, or for so long as his mental health remains fragile.”

The final case is Alia, a decision of Keith J, given on 31 July 2003. The claimant was an ethnic Albanian from Kosovo. His claim for asylum was dismissed by the Secretary of State on 16 October 2000, who served him with a one-stop notice under section 74(4). The claimant appealed to an adjudicator, who on 22 January 2001 dismissed his appeal against the refusal of asylum as well as a human rights claim founded on Article 3. The claimant did not seek leave to appeal to the IAT.

By the time of the hearing before the adjudicator the claimant had formed a relationship with a woman. Later she became his wife. He advanced an Article 8 claim before the adjudicator based on the relationship, but this was rejected. The adjudicator did, however, express the hope that the Secretary of State would consider whether the relationship justified the grant of exceptional leave to remain. Accordingly the claimant’s solicitors advanced the claim for exceptional leave in letters in February and March 2001, relying both on the relationship and on the fact that the claimant had been diagnosed as suffering from post traumatic stress disorder and depression as a result of his experience in Kosovo. The representations went unanswered.

On 22 January 2003 the claimant was arrested for shoplifting and the following day directions were issued for his removal on 30 January 2003. He sought judicial review of the failure to consider his claim for exceptional leave. After the claim had been lodged, a letter dated 30 January 2003 was received from the Secretary of State refusing the claim for exceptional leave, and on 7 February 2003 the Secretary of State wrote again certifying the claimant’s application under section 73(8). It was this certificate that was the object of the challenge before Keith J.

The basis of the Secretary of State’s decision to certify under section 73(8) was that the claimant had failed to comply with the one-stop procedure. The judge held that the Secretary of State was in error on this point. He went on, however:

“16.

… The word ‘delay’ in section 73(8)(a) rather suggests that the Secretary of State’s power to issue a certificate under section 73(8) is triggered when the appellant is seeking to put off what will happen in due course in any event. It is possible, therefore, that section 73(8) was intended to apply to situations where the appellant is trying to buy time in the UK before he has to bow to the inevitable and submit to his removal from the UK. I reach no conclusion on this argument.”

Keith J then considered the various formulations of what ‘legitimate’ in section 73(8) meant in the judgments in Vemenac, Balamurali, Soylemez and (in section 73(2)) in Ngamguem. He then said this:

“19.

I do not comment on the correctness of Mitting J.’s view on the meaning of ‘no other legitimate purpose’ in section 73 (2)(c), though when he said that the purpose of section 73 was to require claimants to bring all claims within one appeal, I would have said that that was the purpose of sections 74-78, and that the purpose of sections 73(1)-(6) was to provide an effective sanction for the failure to comply with that procedure. I would exempt sections 73(7)-(9) from that, because section 73(7)-(9) apply whether or not the one-stop procedure has been invoked by the service of a notice under section 74.

20.

But I do not need to reach a conclusion on what makes a purpose ‘legitimate’ within the meaning of section 73(8), because the claimant’s purpose for making the request for exceptional leave to remain was legitimate on any view. To the extent that he wanted the Secretary of State to consider whether he should be granted exceptional leave to remain in the light of his relationship with Miss Lee, he was doing no more than asking the Secretary of State to consider what the adjudicator had hoped that the Secretary of State would consider. To the extent that he wanted the Secretary of State to consider whether he should be granted exceptional leave to remain in the light of the unavailability of treatment in Kosovo for his damaged mental health, he was doing no more than asking the Secretary of State to consider that which the Secretary of State had not considered before.”

The judge therefore quashed the certificate. It is on this last paragraph that Mr Kirk in his submissions principally relies.

Before I consider in detail the provisions of section 73, I should note the statutory context in which the section appears. Part IV deals with appeals, and rights of appeal to an adjudicator are given in respect of a range of decisions that may be made under the Act or under the 1971 Act. They include in particular the right under section 65(1) to appeal against any decision under the Immigration Acts relating to a person’s entitlement to enter or remain in the UK if the person claims that the decision was contrary to his human rights as protected by the Human Rights Act 1998; and the right of appeal under section 69(1) where removal is claimed to be contrary to the Refugee Convention.

Sections 74 to 77 contain the “one-stop procedure”. Under these provisions a person who appeals against refusal of leave to enter or remain in the UK is served with a one-stop notice by the Secretary of State or immigration officer, and he must then set out any additional grounds he has or may have for wishing to enter or remain in the UK (see section 74(4)). The statement must include any claim for asylum or any human rights claim that the appellant wishes to advance (section 74(7)). Under section 75 provision is made for a similar procedure for a one-stop notice and a statement of additional grounds where a person makes a claim for asylum or a human rights claim, and it brings within the procedure any relevant member of the claimant’s family. Section 76 disables a person from relying in any appeal under the Act on a ground that is not included in the statement, although this disability does not apply where the claim is a human rights claim. Section 77 requires an adjudicator to take into account, subject to certain qualifications, all grounds open to an appellant, whether or not he has sought to rely on them. The object of these provisions is thus to ensure that all grounds are considered in one appeal, and there is no repetition or sequence of appeals raising grounds that could have been raised earlier.

Certain other provisions limiting rights of appeal are to be noted. Under section 72(2) a person who has been, or is to be, sent to a member State or a country designated under section 12(1)(b) is not, while he is in the UK, entitled to appeal under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is “manifestly unfounded”. Similar provisions for certification are contained in paragraph 9 of Schedule 4, which applies to Convention cases. Subparagraph (2) excludes the right of appeal to the IAT where the Secretary of State has certified that in his opinion the claim is one to which one of sub-paragraphs (3), (4), (5) or (6) applies, and the evidence does not establish a reasonable likelihood of torture, and the adjudicator agrees that the claim is one to which paragraph 9 applies. Subparagraph (4) applies to a claim under the Refugee Convention, inter alia where the claimant’s fear of persecution is “manifestly unfounded”. Subparagraph (5) applies to a human rights claim that is “manifestly unfounded.” Subparagraph (6) applies to a claim made after the appellant has been refused leave to enter under the 1971 Act, and in other specified circumstances, and the claim is “manifestly fraudulent” or “frivolous or vexatious”.

Section 73 applies where an earlier appeal by the appellant has been finally determined (subsection (1)). It confers the power to issue a certificate and prescribes the consequences of such a certificate in three distinct sets of circumstances. (I have already set out certain of the subsections, but, so that they may now be seen in context, I will set them out again.) Firstly, subsections (2) and (3) provide:-

“(2)

If the appellant serves a notice of appeal making a claim that a decision of a decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion –

(a)

the appellant’s claim –

(i)

could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)

could reasonably have been made in the original appeal but was not so made;

(b)

one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c)

the appellant had no other legitimate purpose for making the claim.

(3)

On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.”

Secondly subsections (4), (5) and (6) provide:-

“(4)

Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.

(5)

The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.

(6)

On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.”

Thirdly subsections (7), (8) and (9) provide:-

“(7)

Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant

(8)

The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion -

(a)

one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)

the appellant had no other legitimate purpose for making the application.

(9)

No appeal may be brought under the Special Immigration Appeals Commission Act 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).”

A comparison between subsection (2) and (8) seems to me to be potentially significant. It is at first blush surprising that subsections (7), (8) and (9), which deal with the issue of a certificate in relation to a decision made by an immigration officer or the Secretary of State, should come after subsections (2), (3) and (4) which deal with a certificate when an appeal is brought (on human rights grounds) after a decision has been made. It is also to be noted that the power to issue a certificate at the decision stage appears to be wider than the power to issue a certificate once notice of appeal has been given. Under subsection (2) before a certificate can be issued there must have been firstly an appeal on human rights grounds; and secondly (under paragraph (a)(i) and (ii)) a claim that could either have been included in a one-stop statement but was not or could have been made in the original appeal but was not so made. There is no equivalent of paragraph (a)(i) and (ii) in subsection (8). This suggests to me that paragraphs (a) and (b) in subsection (8) ((b) and (c) in subsection (2)) – delay being one purpose, and there being no other legitimate purpose – were intended to produce a relatively demanding requirement. It would be surprising if the requirement was so undemanding that it would always or even almost always be fulfilled if paragraph (a) of subsection (2) was satisfied. It would also be surprising, since there is no equivalent of subsection (2)(a) in subsection (8), if in subsection (8) the requirement could be said to be satisfied by reference simply to failures on the claimant’s part of the sort referred to in (i) and (ii) of subsection (2)(a).

In my judgment an understanding of section 73 is assisted by considering the provisions of section 76. Section 76, as I have said, deals with the effect of failure to comply with the one-stop notice requirements of section 74. It bites before the circumstances in section 73 arise (since that section only applies where an appeal has already been determined). Section 76 provides:

“(1)

In this section –

(a)

‘the applicant’ means the person on whom a notice has been served under section 74(4);

(b)

‘notice’ means a notice served under that section; and

(c)

‘statement’ means the statement which the notice requires the applicant to make to the Secretary of State.

(2)

If the applicant’s statement does not mention a particular ground -

(a)

on which he wishes to enter or remain in the United Kingdom, and

(b)

of which he is aware at the material time,

he may not rely on that ground in any appeal under the Special Immigration Appeals Commission Act 1997 or this Part.

(3)

Subsection (2) does not apply if -

(a)

the ground is a claim for asylum or a claim that an act breached the applicant’s human rights; or

(b)

the Secretary of State considers that the applicant had a reasonable excuse for the omission.

(4)

Subsection (5) applies if the applicant’s statement does not include a claim for asylum.

(5)

If the applicant claims asylum after the end of the period prescribed under section 74(6)(b), no appeal may be made under section 69 if the Secretary of State has certified that in his opinion -

(a)

one purpose of making the claim for asylum was to delay the removal from the United Kingdom of the applicant or of any member of his family; and

(b)

the applicant had no other legitimate purpose for making the application.”

Two particular points are to be noted about this section. The first is the disapplication of the sanction contained in subsection (2) where the claim is for asylum or on human rights grounds. An applicant, whose statement includes a claim for asylum, is not prevented from raising human rights grounds even though they are not referred to in the statement. If, however, the statement does not include a claim for asylum, and after the time limited for making the statement (section 74(6)(b)) a claim for asylum is made, then subsection (5) applies, potentially limiting the right of appeal under section 69. There is nevertheless no such restriction on the right of appeal on human rights grounds under section 65.

The second point on section 76 is that the condition in subsection (5)(a) is that one purpose of making the claim for asylum was to delay removal. This, in my judgment, sheds light on what is meant by “delay” in the corresponding provisions of section 73(2)(b) and section 73(8)(a). It clearly does not encompass delay of the sort that is the very purpose of an asylum application. If it did, (a) would always be satisfied, and there would be no point in including it as a requirement. What is in contemplation, I believe, is a pure tactical delay, a delaying tactic designed to ward off the day when removal is effected. Delay of the sort referred to in (a) is thus never a legitimate purpose. The provision might have said: “the only purpose of making the claim for asylum was to delay” removal. But, if it had said this, the objective of the provision might have been defeated in a particular case by the existence of some other, equally unmeritorious, purpose. So the draftsman included in (a) the words “one purpose” and added (b) to refer to “no other legitimate purpose”.

In section 73, subsection (2) applies to a claim that a decision of a decision-maker was in breach of human rights, and subsection (8) applies to an application in response to which an immigration officer or the Secretary of State makes a decision. The wording of subsection (2)(b) (“one purpose of such a claim would be to delay…removal”) and subsection (8)(a) (“one purpose of making the application was to delay…removal”) reflect the particular circumstances in which subsections (2) and (8) apply. But the provision is in essence the same provision as the one in section 76(5)(a) (“one purpose of making the claim for asylum was to delay… removal”), and it seems to me inescapable that what is in contemplation in the word “delay” is the same in each instance.

In Vemenac Burton J said:

“18.

…It is not enough for a conclusion to be reached that the purpose was delay, because of course a good claim can delay removal from the United Kingdom, one which eventually succeeds but which cannot be foreseen to have succeeded until the last word of the hearing has been spoken, and the judgment given. And so it could be said of almost any claim, good or bad, that one of the purposes of making the application was to delay removal.

19.

What is necessary to justify the Secretary of State’s certification is that in his opinion the appellant had no other legitimate purpose for making the application…”

He thus treated separately the two limbs (a) and (b) of subsection (8), but he attributed a meaning to (a) that meant that in practice it would probably always be satisfied. He was then faced with the difficulty of attributing a meaning to “no other legitimate purpose”. The same approach appears to have been adopted in the other four cases, attention being concentrated exclusively on the second limb and “legitimate purpose” (see in particular Ngamguem paragraph 46, Soylemez paragraphs 12 and 40, Balamurali paragraphs 11 and 21, Alia paragraph 16). In Alia, however, Keith J did say at paragraph 16 in a passage I have quoted above that he thought it possible that section 73(8) was intended to apply to situations where the appellant is trying to buy time in the UK before he has to bow to the inevitable and submit to his removal from the UK. He said that he reached no conclusion on this argument.

In my judgment, the meaning canvassed by Keith J in that passage is the right one, and it is seen to be correct when reference is made to the corresponding provision in section 76(5)(a). The two-stage approach adopted explicitly by Burton J in Venemac and implicitly by the other judges in the other cases, seems to me, with respect, to be wrong. What the Secretary of State (or the immigration officer), in my judgment, has to do when contemplating the possible issue of a certificate under any of these provisions is to ask himself a single question: “Was this application or claim in reality simply made as a delaying tactic?” (In practice, the question of whether there is some other illegitimate purpose as well will, I suspect, rarely arise.) In answering the question he can have regard to everything that might assist him, including the timing of the application (for example if it was made immediately before a removal direction was due to take effect); whether the claim could have been advanced earlier and was not; whether, if the claim was advanced earlier, there is now material new evidence relating to it; and whether there could be any substance in the claim.

I would add that I do not read Ouseley J’s judgment in Ngamguem as seeking to address the overall construction of section 73(8). He was faced with a contention that the existence of new documentary evidence since the adjudicator’s conclusion created a legitimate purpose for the new application, and he had only to address this particular contention. His view was that the new material did not affect the adjudicator’s conclusion. The passage I have quoted must, I believe, be read with this in mind. Burton J’s view that the claimant’s case must be hopeless or manifestly unfounded before section 73(8) applies was impliedly doubted by Davis J in Soylemez (at paragraph 15, which I have quoted above), and Mitting J declined to follow it in Balamurali. It needs to be said, however, that the approach adopted by the judge appears to have been agreed by the parties before him and that he found on the facts that the claimant’s case failed to surmount even this very low hurdle. In Alia, Keith J (at paragraph 19, which I have quoted above) disagreed with Mitting J’s view that the purpose of section 73 was to require claimants to bring all claims within one appeal. From what I have already said, it will be clear that I do not think that the purpose of section 73(8) is either to enable the Secretary of State to exclude appeals in hopeless cases or to require claimants to bring all claims within one appeal. The purpose, in my view, is to enable the Secretary of State (or the immigration officer) to exclude the right of appeal where an application has been made as a delaying tactic.

Mr Robb expressed concern on behalf of the Secretary of State that, unless the determining factor for the purposes of section 73(8) was whether the claim could have been advanced at an earlier stage, it would be open to an applicant to make a series of claims, each raising a new ground. Removal could thus be delayed indefinitely while each new claim was the subject of an appeal under section 65. That, he said, would be contrary to the purpose of the one-stop provisions of sections 74 to 77. There are a number of points to be made about this submission, in my view.

Firstly the sanction contained in section 76(2), preventing an applicant from relying on a ground not mentioned in his one-stop statement, does not apply to human rights claims. There is thus a recognition that an appeal under section 65 ought not to be excluded simply because the grounds on which it is based could have been advanced at an earlier stage but were not. Secondly, on the construction of section 73(8) that I believe to be correct, the fact that a claim could have been advanced at an earlier stage is not irrelevant to the question of whether the case falls within the provision. On the contrary, the fact that the claim was not advanced earlier may well be a factor suggesting that the only reason that it is being advanced now is to delay removal, and if a second further claim is made this could well be more strongly suggestive that delay is the purpose. Thirdly, to the extent that the Act does not prevent successive claims, and appeals, on human rights grounds, this is to be seen as a matter of policy. It is not obvious that an appeal under section 65 should be excluded simply because the claim could have been made at an earlier stage. Policy may change; and indeed it appears that under the Nationality, Immigration and Asylum Act 2002, which replaces the provisions in the 1999 Act that give rise to the present proceedings, a certificate excluding the right of appeal could be issued where a human rights claim could have been put forward earlier and was not (see section 96(2)).

The letter of 25 March 2003 certifying the claimant’s application under section 73(8) contained no explicit statement of why the Secretary of State was of the opinion that one purpose of the application was to delay removal and that the claimant had no other legitimate purpose for making it. The approach he adopted in reaching his opinion is to be found in his detailed grounds of opposition to the present application at paragraph 11. There he says that he must ask himself whether the arguments now being put forward could not have been submitted before, so that the section must be read as providing that the claimant had no other legitimate purpose for making the application at the stage that he did. That approach, as I have said, is not in my view correct in law.

Had the Secretary of State applied the approach that is in my view correct and asked himself whether the application had simply been made to delay the claimant’s removal, he might well have concluded otherwise than he did. The application was made in June 2002, and it does not appear that at that time the claimant was in imminent danger of removal. The human rights claim that he had made in his appeal in February 2001 had never been determined. His non-attendance at the appeal hearing was unexplained. There was now a child of the marriage. These factors could well have let the Secretary of State to reach an opinion contrary to the one that founded the certificate. In my judgment, therefore, the certificate under section 73(8) must be quashed.

For the reasons I have given, the claimant’s challenge to the Secretary of State’s decision on his human rights claim fails, but his challenge succeeds in relation to the certificate, which must accordingly be quashed.