England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday 14th November, 2001

1. LORD JUSTICE SEDLEY: This is a renewed application, made by Mr Gill QC, for permission to appeal to this court against a decision of the Immigration Appeal Tribunal. We have had the very considerable advantage of Mr Hunter's assistance on behalf of the Home Office in coming to our decision this morning. There is no need to go into any detail because the decision of the Immigration Appeal Tribunal is one of great clarity and spells out exactly what the issues and the problems are.

2. What we have to decide today is whether there is a viable argument to the effect that a certificate which blocks a second appeal under the Refugee Convention does not block a second appeal under the Human Rights Convention, where no separate certificate under the latter has been issued by the Secretary of State. The right to a second appeal in our immigration and asylum system is general, except where excluded by statute. There is little doubt, for reasons spelt out by the Immigration Appeal Tribunal, that there is an anomaly in the legislation as at present configured. The Secretary of State has recognised the existence of the anomaly and, since attention was drawn to it by the IAT, has very fairly adopted a policy of, in effect, not taking advantage of it but ensuring that his certification procedures give applicants the benefit of a second appeal in all appropriate cases. It is, however, only a policy and, like other policies, is susceptible to change and may be departed from in particular cases, with an inevitable potentiality for argument and further litigation if it happens.
3. There is, we are told by both sides, a small but significant number of cases falling into the same bracket as the present applicant's case. It seems to us right, both for those applicants and for other applicants who are dependent on policy rather than on law, that this issue, if it is viable, should be decided in this court. For my part I think it is viable, notwithstanding the fact that an Immigration Appeal Tribunal of considerable experience and distinction, with goodwill towards the applicant, was unable to find a route for his proposed appeal.
4. In essence, the arguments which seem to me to be viable are these. First, that paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 operates disjunctively as to (a) the Refugee Convention and (b) the Human Rights Convention. Sub-paragraph (8) is arguably consistent with such disjunction. If it operates, it operates so as to split the certification process decisively between the two Conventions, so that certification under one has no bearing on the certifiability of the other. The other must either be separately certified (in which case no second appeal lies) or, if not certified, remains open to a second appeal.
5. The other argument, which may be (but is not necessarily) dependent upon the first, is the one founded on principally today by Mr Hunter: namely that there is a single appeal under Part IV of the Act, by virtue of which there is no room for a division between the certified and the non-certified. A certificate by bringing to an end a second appeal under the one Convention, so the argument goes, inexorably brings to an end the possibility of a second appeal under the other. This may be a legislative error and the policy which I have mentioned lends some force to the view that it was. But if Mr Hunter is right that the legislation is plain and unambiguous, it will be an end of the matter.
6. In my present view Mr Gill has reasonable grounds for arguing that the legislation in Part IV is not unequivocal or unambiguous, and that appeals are not fused in the way that Mr Hunter wishes to argue. There is a respectable argument, it seems to me, that these are procedural measures for ensuring that an applicant brings his whole case forward at the same time. But it does not necessarily follow that a fusion takes place with such completeness as to produce the very anomaly which everybody recognises follows if the Home Secretary's construction is correct.
7. That seems to me to be sufficient to afford an entitlement to permission to appeal in a case such as the present, without having to go to a prognostication or a quantification of the prospects of success. The issue is one of public importance - both sides agree that it is and I agree with them - and since, in my judgment, the arguments are viable they ought to be heard by the full court.
8. We will have a word in a moment about expedition and other arrangements.
9. LADY JUSTICE ARDEN: I agree with my Lord, Lord Justice Sedley. With respect to the argument on construction there is a real prospect of success, and in addition there is a public interest in having the point resolved at this level. Accordingly, in those circumstances, I agree that permission to appeal should be granted.
10. In so far as we are concerned with the second point, as to whether the adjudicator erred in upholding the certificate, I consider that permission should not be granted on this ground, as the new matter sought to be relied upon really arises out of the decision of the Secretary of State, which should have been challenged of it was to be challenged at an earlier stage. But as I understand it, the second argument is very much auxiliary to the first point on construction. In the circumstances, I consider that the appeal should go ahead but only on the first ground.
11. I would like to add this. It is sought by the applicant before us to rely on Pepper v Hart [1993] AC 593. As I understand it, he relies simply on one statement by the Minister and the fact that that statement was never subsequently corrected. If the argument on Pepper v Hart is to be put before the court on the full appeal, any passages relied on in Hansard should be clearly sidelined in the material placed before the court. In addition the skeleton argument should precisely say how the conditions laid down in Pepper v Hart are met in this case. I say that without meaning any criticism to the applicant at this stage, because we are on notice, through Mr Hunter's helpful submissions, that he challenges the applicant's submission that this is material to which the court can have recourse on this appeal.
ORDER: Application for permission to appeal allowed; appeal to be expedited, with a time estimate of 3 hours; Mr Gill to serve his skeleton argument within 2 weeks; Mr Hunter to serve his skeleton argument one week thereafter. (Order not part of approved judgment)