Tariq, R (on the application of) v An Adjudicator

J U D G M E N T

1. MR JUSTICE NEWMAN: On 13th August 2003, Queen's Counsel acting as a Deputy High Court Judge granted limited permission to the claimant, Durashawar Tariq. The observations were as follows:

"Permission is hereby granted but only in respect of the adjudicator's error in purporting to uphold a certificate in respect of the claimant's human rights appeal.

"The grounds seeking judicial review of the decision to dismiss the appeal and to uphold the asylum certificate disclose no seriously arguable case of error of law or perversity."

2. That observation was made in respect of what one might call the "merits attack" upon the conclusion which had been reached in connection with the asylum and human rights claim.

3. So the matter proceeded, but without any renewed application being made within the seven day period for permission to argue the merits as opposed to the excessive jurisdiction in respect of the certification.

4. Then before this hearing, Mr Cooray, who took over the papers from another, put in an application to rely upon additional grounds, the application being based upon CPR 54.15. By that provision, the court is entitled where exceptional circumstances are shown, to meet the interests of justice, to allow additional grounds to be argued.

5. However, that is a matter which, however wide that jurisdiction may be, is not one which is likely to find a fertile basis, when what is in fact being sought is permission to renew an application, out of time, in respect of a ground which has already been refused permission.

6. Mr Cooray says that that is not the position. I am not persuaded, however he puts it, that it is not simply an attempt to deal with the point which was raised in the initial grounds; namely the complaint that the adjudicator's finding that he did not accept that the claimant was an active preacher or had proselytised in accordance with her Ahmadi faith was not well-founded.

7. Mr Cooray seeks to obtain permission of the court to argue further grounds because he submits that there is an underlying flaw in this: namely, an approach by the adjudicator to the question on the basis that the Adjudicator seems to assume that it was part of the Ahmadi faith that preaching or to be a preacher was a critical aspect of the matter, whereas in truth, as it is well known, it is merely a tenet of the faith of the Ahmadis to propagate their religion.

8. Mr Cooray says that therefore this adjudicator seems to imply that the Ahmadis are obliged to be active preachers; therefore she approaches the matter on the basis that as long as the claimant was not an active preacher, she would not suffer persecution. Therefore no risk of persecution was found, because the Adjudicator concluded that the claimant had not been an active preacher or had proselytised.

9. I simply cannot read the short sentence in paragraph 38 of the adjudicator's determination as supporting anything other than the broadest finding of fact. It was:

"I do not accept that she has been an active preacher or has proselytised."

10. In my judgment, that was a relevant finding. It cannot be impugned on any legal basis, it is not the one that indicates, in my judgment, an arguable flaw, and thus I am not impressed by the merits of this application, and I am not impressed by the failure to have sought to bring this matter before the court by way of renewed application. For that reason, that part of the case must fail.

11. I shall turn in a moment to that part of the case which must succeed.

12. Mr Cooray, you must succeed so far as your certification point is concerned. Do you want to say anything more until I rule on that?

13. MR COORAY: I would like a statement on the lines that you have expressed in order to clarify, because in future cases, there are a number of cases in the pipeline of a similar nature.

14. MR JUSTICE NEWMAN: Thank you very much.

15. The case now before me is an application for judicial review in respect of a ground for which permission was granted by the Learned Deputy Judge. The Learned Deputy Judge granted it in these terms in respect of the adjudicator's error in purporting to uphold a certificate in respect of the claimant's human rights appeal.

16. The matter has now come before me in a way in which there is no issue between the parties that if and insofar as the adjudicator's reasons of determination are taken as an order on his part to uphold a certificate in respect of the human rights appeal as well as the asylum appeal, he would have been in error.

17. The adjudicator has written in response to the Treasury Solicitor explaining the position as follows:

"With reference to paragraph 6 of my determination I did not make clear that the Home Office had only certified under 9(3)(b) Sched. 4 . They had stated that this was a case where 9(7) did not apply. Accordingly there was only one certification under the Geneva Convention and no certification under Human Rights.

"Accordingly in my final sentence I upheld that one certificate. I referred to certificates in the plural as I agreed that this was a case where 9(7) did not apply. That was less than clear in my determination but I hope the above clarifies matters."

18. The agreed position before this court, and it requires no more elaboration, is that indeed there was only one certificate. There could therefore not be the upholding of a certificate in connection with the Human Rights claim. There is therefore extant, as the Secretary of State says, a human rights appeal, and that right, if exercised, will lead to the Tribunal having jurisdiction to hear that appeal.

19. This is not, as Mr Cooray has submitted, a case where there is in my judgment any danger that the Tribunal will for example adopt the approach which was taken in the case of Maria Mendes v The Secretary of State for the Home Department [2002] UK IAT 03922 heard in August 2002, because in this case it is accepted that there was no certification in respect of the human rights appeal, and therefore there can be no limitation upon the right of appeal to the Tribunal in respect of that matter.

20. For all those reasons, therefore, judicial review is granted in the sense that this judgment will stand as declaring the true position in connection with the Adjudicator's determination and reasons, and in the circumstances it seems to me that there is no need for any further relief.

21. MR COORAY: My Lord, I wonder whether it could be made clear that a certification under 93 (a) or (b) if made would only cover the particular ground and not any other claim.

22. MR JUSTICE NEWMAN: I do not think that is a matter that I am going to enter into today, Mr Cooray. It is a matter which, if I were to entertain it, would require detailed argument, and I have not actually heard such detailed argument. It seems to me that this case falls within a narrow compass. All that justice requires in this case is that which I have said. Thank you very much.

23. Mr Beard, any observations to make in connection with that?

24. MR BEARD: No, my Lord. As the Secretary of State has made clear throughout, that is the position that he has adopted from the outset, on his acknowledgment of service in relation to this case. My Lord, I have an application that the claimant's legal representatives show cause why it was necessary to come to this court today in relation to this matter, given the consistent position that has been taken by the Secretary of State in relation to the human rights matter.

25. MR JUSTICE NEWMAN: Certainly. I have seen that application. You wish them to show cause as to why there should not be an application for wasted costs.

26. MR BEARD: An application for wasted costs against the legal representatives. Both solicitors and counsel should give reasons for cause pursuant to the provisions in CPR 48, because this case has been one on which the point which was highlighted by Wilkie J was clarified immediately, and there was no issue otherwise, save for this late application for additional grounds, which the Secretary of State considers tantamount to an abuse of process in the light of the provisions in CPR 54.

27. MR JUSTICE NEWMAN: Thank you. Now, Mr Cooray, what do you say to that?

28. MR COORAY: My Lord, first of all, it is clear that firstly this application was not against the Secretary of State, he is here as an interested party. I have shown that there are many cases in which this matter is not clear, and unfortunately the adjudicator's letter is not clear either. You have seen many cases where the certification, where it is referred to, it refers to only one. That is either a certification under 9 (2), (3), (4) or (5). The 9(7) was something which the Secretary of State cannot certify in any one of the instances where 9(7) applied. So 9(7) is not a separate certification.

29. As far as in the case of Salasir (?), the IAT agreed that a certification which falls only on, say, 9(3), (4), (5), is not valid; that in order for a certification to be complete, it must also have the second limb of whether there has been torture or not. Therefore, the adjudicator's construction of his own words is not correct, so at any rate there was therefore an issue.

30. Secondly, as I said before, the Tribunal is continually making this sort of decision where it is only certificated under 9(3) or 9(5) on asylum grounds, it is always raised --

31. MR JUSTICE NEWMAN: Yes, Mr Cooray. If you have a position where it has been acknowledged that you have a right of appeal, and the matter proceeds to the Tribunal and the Tribunal then takes the view that it is not going to entertain an appeal, even though the Secretary of State or the respondent accepts that there is jurisdiction to deal with it and the Tribunal then makes an error, then of course you can come back to the court. But to pursue an application on the ground that the Tribunal may do something in the future that is manifestly wrong does not seem to me to be the right way to deal with this. What is the position? Do you have public funding?

32. MR COORAY: Yes, my Lord.

33. MR JUSTICE NEWMAN: Have the Legal Services Commission been aware of the correspondence which has passed between the Treasury Solicitor and your solicitors?

34. MR COORAY: I am not sure.

35. MR JUSTICE NEWMAN: Well, that is what I want to know. It does seem to me that this is a case in which there must be an inquiry as to how it is that the matter has proceeded as far as it has, and your solicitors need to explain how it is firstly that the Legal Services Commission have continued to fund this matter in the light of the correspondence which has come from the Treasury Solicitor, also there will need to be a witness statement from your instructing solicitors saying when they supplied that correspondence to the Legal Services Commission, and if they did not, an explanation as to why they did not supply it to the Legal Services Commission.

36. So far as you are concerned, please could I have in the usual way, you can amplify on paper the sort of points that you are now putting to me now, all parts of your response to what it seems to me prima facie is a case which needs to be looked at to see why it is that this matter has proceeded so far as it has. Could you please do that, showing cause as to why there should not be a wasted cost order in this case.

37. Thank you very much indeed.

38. MR BEARD: My Lord, might it be sensible to set a date for those preliminary submissions to be provided to your Lordship?

39. MR JUSTICE NEWMAN: I will not say to myself, because they can be provided to the court.

40. MR BEARD: Certainly. I am sorry my Lord, yes.

41. MR JUSTICE NEWMAN: They can be lodged with the court. Mr Cooray, you do not have any solicitor here today, have you?

42. MR COORAY: No, my Lord.

43. MR JUSTICE NEWMAN: How long shall we say for your solicitor to do this?

44. MR COORAY: They should be able to do it within about three weeks.

45. MR JUSTICE NEWMAN: I would have said 14 days. Can you do that yourself within 14 days?

46. MR COORAY: Yes.

47. MR JUSTICE NEWMAN: I do not know whether that involves Miss Steven(?) or not. If she plays any role in it then it would be fair to involve her as well, but it may be that all this is, as it were, down to you rather than her. Anyway, I will leave that to you. Thank you very much.

48. MR BEARD: I am very grateful, my Lord. Just one more point of clarification. As well as lodging with the court, could the Treasury Solicitor be provided with a copy of any statements?

49. MR JUSTICE NEWMAN: Oh, yes. You understand that, Mr Cooray. It must be lodged with the court and also served upon the Treasury Solicitor.

50. MR BEARD: I am most grateful, my Lord.

51. MR JUSTICE NEWMAN: Thank you both.