England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE GRIGSON)

		Royal Courts of Justice Strand London WC2 Monday, 29th July 2002

1. LORD JUSTICE SCHIEMANN: This is an appeal against the judgment of Grigson J and, more specifically, against his finding that a second adjudicator to hear this appeal following a remittal from the Immigration Appeal Tribunal did not have the power to consider and disagree with the Secretary of State's certificate under paragraph 5 of Schedule 2 of the Asylum and Immigration Appeals Act 1993. As the judge rightly noted in his grant of leave to appeal, this point is of fundamental importance to the operation of the certification process provided for in the Asylum and Immigration Appeals Act 1993, which is the Act which was in issue in this case, the Immigration and Asylum Act 1999, which has overtaken it.
2. The relevant legislative provisions are as follows. Paragraph 5 of Schedule 2 of the Asylum and Immigration Appeals Act 1993 (as amended) provides in subparagraph (1):

"(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which-

(a) sub-paragraph (2), (3) or (4) below applies; and

(b) sub-paragraph (5) below does not apply."

3. Subparagraph (3) reads:

"(3) This sub-paragraph applies to a claim if, on his arrival in the United Kingdom, the appellant was required by an immigration officer to produce a valid passport and either-

(a) he failed to produce a passport without giving a reasonable explanation for his failure to do so; or..."

4. There then follows a provision which is not presently relevant.
5. Subparagraph (5) provides:

"This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.

(6)...

(7) If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is one to which-

(a) sub-paragraph (2), (3) or (4) above applies; and

(b) sub-paragraph (5) above does not apply,

section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal."

6. So far as remittal from the Immigration Appeal Tribunal to a second adjudicator is concerned, the appropriate rule is Rule 23 of the Immigration and Asylum Appeals (Procedure) Rules of 2000 which provides:

"Unless it considers-

(a) that it is necessary in the interests of justice, and

(b) that it would save time and avoid expense

to remit the case to the same or another special adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself."

7. The factual background of the present case is as follows. The respondent immigrant, or would-be immigrant, is a Sri Lankan national who applied for asylum in the United Kingdom. By a letter dated 23rd March 2000 this application was refused. That letter stated:

"In addition the Secretary of State certifies that your claim is one to which paragraph 5(3)(a) of Schedule 2 to the 1993 Act (as amended) applies owing to your failure to produce a passport when requested to do so on arrival; and that your claim is one to which paragraph 5(5) does not apply because you have adduced no evidence relating to torture."

8. The immigrant appealed against this decision to the Adjudicator. In the determination promulgated on 29th September 2000 the first Adjudicator, who was Mrs Symons, concluded that "the appeal is dismissed but the certificate is not upheld".
9. The immigrant appealed this determination to the IAT and this appeal was allowed by a determination notified on 31st January 2001. The Immigration Appeal Tribunal stated:

"This appeal against the adjudicator's determination is allowed and we direct that the appellant's appeal be considered afresh by an adjudicator other than Mrs Symons."

10. The reason the appeal was allowed is that it became apparent from the papers that there was a possibility that Mrs Symons had become confused between two separate appeals which were pending before her and had mixed up the one with the other. I say it is a possibility, it must have seemed a probability to the applicant since the sex of the applicant who had appeared before her was confused.
11. The immigrant's appeal, having been remitted, was then considered by a second adjudicator, Mr Wiseman, on 18th April 2001. By a determination promulgated on 28th June 2001 the second adjudicator also dismissed the appeal. However, he also went on to uphold the certificate. In short, he came to a different view from that which Mrs Symons had come to in relation to the certificate, if Mrs Symons was applying her mind to the appropriate appellant.
12. The immigrant then applied for judicial review of the second adjudicator's decision to uphold the certificate on the basis that the second adjudicator had no power in law to consider the certificate as that had been "discharged and no longer existed", or that even if the second adjudicator had such power he was wrong to agree with it as the immigrant had been tortured in Sri Lanka and therefore paragraph 5(5) of Schedule 2 of the 1993 Act did apply.
13. In his judgment the judge held four things:

(1) The first adjudicator's disagreement with the certificate "does not render it wrong nor quash or discharge it, the effect is simply to remove the inhibition on the applicant's right of appeal".

(2) Because the IAT had before it only an appeal on the substantive issue, the IAT having no jurisdiction under paragraph 6 of Schedule 2 of the 1993 Act, it was only the substantive appeal which the IAT remitted to the second adjudicator, "The second adjudicator could only determine that which was remitted to him".

(3) If the second adjudicator had had the power to consider the certificate "the second special adjudicator's finding of agreement with the certification is not erroneous in law" but,

(4) because of the judge's second finding, the applicant could appeal to the IAT from the decision of the second adjudicator, since the decision of the first adjudicator in relation to the certification stood.

14. Now the Secretary of State appeals before us. I have been reading from and should continue to read from, or adopt in large part, in any event, the excellent skeleton argument which has been prepared by Mr Eicke on his behalf. The Secretary of State accepts the finding of the judge in relation to the first and the third matters which I have just indicated, and these are not in issue. The issue before us is the second of those findings. Mr Eicke submits, and Mr O'Callaghan does not disagree, as follows. The adjudicator and the IAT are both statutory tribunals and therefore they only have the powers given to them respectively by the statutes and rules that govern their procedures. Furthermore, in considering the statutory powers provided to the different parties, the Secretary of State in certifying, the adjudicator and the IAT, there are important decisions to be made between first, the claim for asylum and any decision made there on, second, the appeal to the adjudicator against the decision on that claim and third, the appeal to the Immigration Appeal Tribunal against the determination of the adjudicator.
15. Under paragraph 5(1) of Schedule 2 of the 1993 Act, the Secretary of State has power to certify the appellant's "claim" for asylum, but not his "appeal". It is only as a consequence of the Secretary of State's certificate, if the adjudicator agrees with it, that the respondent does not enjoy a right of appeal to the IAT.
16. An immigrant has a right to appeal against the decision on the "claim" to the adjudicator. Under paragraph 5(7) of Schedule 2 of the 1993 Act the adjudicator on an appeal to which paragraph 5 of Schedule 2 applies is given jurisdiction to "agree" with the factual assertions underlying the certificate made by the Secretary of State. Where he so agrees, the appellant does not enjoy a right of appeal to the IAT. As the judge rightly held, an adjudicator's disagreement with a certificate does not affect the continuing existence or validity of the certificate.
17. Where an adjudicator does not agree with the certificate, the appellant enjoys a right of appeal to the IAT. As the IAT held in Secretary of State for the Home Department v Liu Dao Shiu (01/TH/00103), a determination of 25th April 2001, the IAT does not have jurisdiction to consider whether the adjudicator should have agreed with the certificate or not.
18. On remittal the adjudicator does not effectively hear the appeal that would otherwise have been heard by the IAT, that is he is not subject to the same jurisdictional limitations as the IAT. On the contrary, on remittal the adjudicator hears afresh the "appeal to an adjudicator" against the decision on "the claim". I think it is at this point, or round about this part of the argument, that Mr O'Callaghan parts company from Mr Eicke.
19. I continue with Mr Eicke's submissions. They were that the jurisdiction of an adjudicator on an appeal to him is different from that of the IAT hearing an appeal from an adjudicator. The adjudicator's jurisdiction expressly includes, by virtue of paragraph 5(7) of Schedule 2 of the 1993 Act, the power to agree with the certificate. The jurisdiction under paragraph 5(7) arises in "an appeal to which this paragraph applies". Paragraph 5(1) makes clear that:

"This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which-

(a) sub-paragraph (2), (3) or (4) below applies; and

(b) sub-paragraph (5) below does not apply."

20. From the above, including the first finding of the judge which I summarised earlier, Mr Eicke submits that it is obvious that firstly, the appeal heard by the second adjudicator is and remains "an appeal by a person under subsection (1) to (4) of section 8 of this Act" and secondly, the Secretary of State has certified the "claim" within the terms of paragraph 5, a certified that is unaffected by the first adjudicator's disagreement with it. There is nothing in either paragraph 5 of Schedule 2 of the 1993 Act or any other statutory provision which limits an adjudicator's jurisdiction when hearing an appeal remitted from the IAT. He submits that this conclusion is further supported by the fact that the adjudicator's jurisdiction to agree is itself limited to a jurisdiction to agree "with the factuality of the reasons for which the claim was certified" to use a phrase used by Sedley LJ in Bajwa v Secretary of State for Home Department [2000] Immigration Appeal Reports 364 at paragraphs 12 and 14.
21. Mr Eicke submits that this essentially fact-finding jurisdiction is most appropriately exercised by the first instance tribunal charged primarily with the fact-finding jurisdiction. Whether it is the first adjudicator or the second adjudicator, especially where the appeal was remitted to the second adjudicator for hearing de novo on the basis that "it would be impossible to say that the determination is soundly based on the evidence". So, submits Mr Eicke, the second adjudicator was entitled to exercise his jurisdiction under paragraph 5(7) of Schedule 2 of the 1993 Act to agree with the certificate. By so doing, the second adjudicator barred the respondent's second appeal to the IAT. So it is submitted that the judge was wrong in finding that the second adjudicator did not have such power.
22. Mr O'Callaghan effectively founds himself on the reasoning of the judge. He submits that once one has come off the fast-track procedure provided for in those cases where an adjudicator agrees with the Secretary of State's certification, and finds oneself on what one might call the slow-track procedure, then there is nothing in the Act which draws one into the fast-track procedure, which undoubtedly is the effect of what has happened here.
23. He submits, and it is not in dispute, that before the Immigration Appeal Tribunal there was only an appeal against the determination of the first adjudicator and he submits that that determination having been quashed, all that was left for the second adjudicator to do was to carry on, as it were, from where the first adjudicator had left off, once he had disagreed with the certification given by the Secretary of State.
24. For my part, I do not regard the statutory provisions as giving rise to that possibility, nor do I think it desirable that they should do so. The present case illustrates precisely how things can go wrong. The first adjudicator quite possibly applied her mind to the wrong case when she was dealing with this case; that was the basis on which the Immigration Appeal Tribunal sent the matter back. It would be unfortunate, to say the least, that if that was indeed the case that a disagreement with the certification which had been procured in circumstances where the adjudicator was thinking of the wrong certificate should somehow or other have effect in a case which is eventually sent to another adjudicator who can apply his mind to the right certificate.
25. I fully accept that Parliament might have so enacted in an endeavour to make things quicker, but if so that would have been an odd thing for Parliament to have done because in fact it would have made things slower because it raises the possibility, which of course Mr O'Callaghan is keen to exploit, of a second appeal to the Immigration Appeal Tribunal in a case such as the present. But, essentially, for the reasons set out in the submissions of Mr Eicke, I would allow this appeal.
26. LORD JUSTICE BUXTON: I agree. What is described in paragraph 5 of Schedule 2 of the 1993 Act as "special appeals procedures for claims without foundation" has two limbs or stages: the first is a certification by the Secretary of State in respect of the matters that are set out in paragraph 5(1); the second is consideration by the adjudicator before whom an appeal comes as to whether he agrees with the Secretary of State in the respects of his certification that are set out in paragraph 5(7) of the Schedule.
27. It is revelatory that in this case the original and preferred argument of the complainant was that, upon a disagreement on the part of the first special adjudicator, the certificate became a nullity. If that were the law there would thereafter be nothing in any subsequent appeal for the subsequent special adjudicator as it were to bite upon; the question of his agreement or disagreement would not arise. However, the judge found that it was incorrect to say that the original certificate had been rendered a nullity and it is not sought in this appeal to challenge, by way of respondent's notice, that conclusion. That means that one thereafter has to apply the plain wording of the Schedule to the circumstance in which the second adjudicator found himself, that there was an extant certificate.
28. I, for my part, have not found helpful Mr O'Callaghan's characterisation of the procedure under paragraph 5 as a "fast-track" procedure. That language appears to be drawn, if drawn at all, from the pattern of the Civil Procedure Rules where, upon a determination being made, the procedure is placed under a different form of process. That is not what happens in respect of paragraph 5; all that paragraph 5 tells us is what shall happen in the case of "an appeal to which this paragraph applies". Where the special adjudicator is faced with such an appeal he has the power to express agreement, as paragraph 5(7) provides.
29. In this case, what was remitted to the special adjudicator, as Mr O'Callaghan urges, was indeed an appeal, but it was still an appeal to which paragraph 5 applied. That being so, the normal and full powers provided by the Schedule to the special adjudicator still obtained, and those included, by the plain wording in the section, power to express agreement with the certification, with the consequences set out in the Schedule.
30. I, therefore, for those reasons, entirely agree with my Lord's view and with the reasons that he has given, and although we are differing from the judge below I do not think it necessary to say anything further.
31. LORD JUSTICE LONGMORE: I agree with both judgments.
(Appeal allowed; no order as to costs; legal aid assessment).