England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL ADJUDICATOR

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th November 2002

Lord Justice Simon Brown:

1. The appellant is a 36 year old Iranian woman who came clandestinely to this country on 23 October 2000 and the next day claimed asylum. The basis of her claim was that she is a lesbian and fears persecution in Iran because of her sexual orientation. Both in her claim form and at interview she asserted that she had been discovered lovemaking in a number of lesbian relationships and had been severely punished on each occasion.
2. On 29 November 2000 the Secretary of State refused her application for asylum and in addition certified under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 (as amended) that the claim was one to which paragraph 9(6)(c) applied, ie that it was frivolous or vexatious, and that it was not one to which paragraph 9(7) applied, ie that the evidence adduced in its support did not establish a reasonable likelihood that the claimant had been tortured in the country to which she was to be sent. In the course of his decision letter the Secretary of State described several features of the appellant’s case each of which he said “cast serious doubts” upon its credibility and he concluded that her motivation for claiming asylum was a desire for economic betterment and not a fear of persecution.
3. The appellant’s appeal against that decision was dismissed by the Adjudicator, Mrs Nichols, on 20 March 2001. The Adjudicator described the appellant’s evidence variously as “generally not credible”, “an attempt to manufacture evidence”, “completely lacking in credibility”, “a fabrication”, “untruthful” and so forth. Amongst her findings were that “the appellant has not established that she has ever had a homosexual relationship with another woman”, “that the authorities have [never] had occasion to arrest her on account of her sexual orientation” and that “she is not of any interest to the Iranian authorities”. As to the Secretary of State’s certificate under paragraph 9, the Adjudicator said this:

“30. I indicated that I would deal with the certificate issued by the respondent in this case once I had considered the totality of the evidence. For the reasons I have given, it is my finding the appellant has fabricated a claim for asylum. For that reason, and given the respondent’s evidence as to why he did not accept her credibility in his reasons for refusal, I accept the respondent was right to certify the appellant’s claim as frivolous and vexatious. In my view the appellant has used the argument of her sexual orientation, falsely, in an attempt to be granted political asylum. It also follows from my findings that there is no credible evidence that the appellant has ever been tortured in the past on account of her sexual orientation through unduly severe punishment for a Convention reason.”

4. Amongst other criticisms of the adjudication was that the Adjudicator had erred in law in upholding the certificate. On that issue alone she obtained leave to move for judicial review. Her challenge was dismissed by Keith J on 14 February 2002. The appeal to this court is brought with the permission of Laws LJ.
5. Four arguments are now advanced. To understand them it is necessary first to set out in full paragraph 9 of the fourth Schedule:

“9(1) This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which-

(a) sub-paragraph (3), (4), (5) or 6 applies; and

(b) sub-paragraph (7) does not apply.

(2) If, on an appeal to which this paragraph applies, the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

(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-

(a) he failed to do so, without giving a reasonable explanation for his failure; or

(b) he produced an invalid passport and failed to inform the officer that it was not valid.

(4) This sub-paragraph applies to a claim under the Refugee Convention if-

(a) it does not show a fear of persecution by reasons of the appellant’s race, religion, nationality, membership of a particular social group, or political opinion; or

(b) it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist.

(5) This sub-paragraph applies to a claim under the Human Rights Convention if-

(a) it does not disclose a right under the Convention; or

(b) it does disclose a right under the Convention, but the claim is manifestly unfounded.

(6) This sub-paragraph applies to a claim if-

(a) it is made at any time after the appellant-

(i) has been refused leave to enter the United Kingdom under the 1971 Act;

(ii) has been recommended for deportation by a court empowered by that Act to do so;

(iii) has been notified of the Secretary of State’s decision to make a deportation order against him under section 5(1) of the 1971 Act as a result of his liability to deportation; or

(iv) has been notified of his liability for deportation under paragraph 9 of Schedule 2 to that Act;

(b) it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false; or

(c) it is frivolous or vexatious.

(7) 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 to which he is to be sent.

(8) ‘Contrary to the Convention’ means contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention.”

6. Mr Kadri QC’s first and main argument is that the Secretary of State was not entitled to certify this claim under paragraph 9(6)(c) as frivolous or vexatious because, he submits, that form of certification is only available when the claim is bad on its face and not, as here, following the consideration of its merits and in particular on grounds of credibility. This claim on its face was not frivolous or vexatious: had the appellant indeed been treated as she claimed for engaging in lesbian relationships, she would unarguably be entitled to asylum. In support of this argument Mr Kadri draws attention to various other parts of paragraph 9, notably the references in paragraph 9(4)(b) and 9(5)(b) to claims (respectively under the Refugee Convention and the Human Rights Convention) being “manifestly unfounded”, and in paragraph 9(6)(b) to claims being “manifestly fraudulent” or any evidence adduced in support being “manifestly false”. He further refers us to paragraph 10 of the guidance on certification issued by the Immigration and Nationality Directorate:

“10. Frivolous and Vexatious Claims

Paragraph 9(6)(c) applies to those claims that are considered to be frivolous or vexatious. An example of a frivolous claim would be where the applicant bases a claim on facts which are both different from and wholly incompatible with those cited previously, either in a previous claim or as part of the same claim.

A vexatious claim can apply to repeat applications. For example, a claim which is not significantly different from a previously unsuccessful claim made on an earlier visit to the United Kingdom. This ground can also apply to a claim when it is found that the applicant has lodged multiple claims in one or more identities.”

7. One principal difficulty with this argument is that it runs into the decision of the Divisional Court (Rose LJ and Wright J) in R -v- Special Adjudicator ex parte Paulino & Edoukou [1996] IAR 122. The court there expressly accepted the counsel for the Home Office’s submission that “in considering whether a claim is frivolous or vexatious the court can … look at the evidence as to the merits of the case” and that “a case may be frivolous and vexatious … either because it, on its face, does not engage the Convention at all, or because examination of the facts demonstrates a high probability of failure because the applicant’s credibility is manifestly unreliable”. The court continued:

“It does not follow that want of credibility on the part of the applicant in itself justifies characterisation of his claim as frivolous or vexatious. If the applicant’s account is totally incredible on matters which provide the basis for engaging the Convention then his claim can properly be so described. But if his lack of credibility is not so fundamental either because, for example, it only relates to fringe matters or because arguably it does lean on the basis of the claim, in our judgment it is not possible for an applicant’s claim to be characterised either by the Secretary of State or by the Special Adjudicator as frivolous under 5(3)(b) [the ‘frivolous or vexatious’ paragraph then in force].”

8. If that judgment as to the true construction and application of the “frivolous or vexatious” provision applies today as it applied in 1995, then, as Mr Kadri recognises, his first argument must inevitably fail. But, he submits, it should not apply today because now (indeed since 1996) this provision appears in a significantly different context. Paulino & Edoukou was decided in the context of paragraph 5 of the Asylum and Immigration Appeals Act 1993 when certification of a claim as being “without foundation” was possible on two grounds only:

“(a) it does not raise any issue as to the United Kingdom’s obligations under the Convention; or

(b) it is otherwise frivolous or vexatious.”

9. Nowadays, submits Mr Kadri, there being various other provisions available to the Secretary of State under which he can certify a claim which he regards as fundamentally incredible, it is no longer appropriate to do so under the “frivolous or vexatious” provision.
10. For my part I have no hesitation in rejecting this argument. There appears to me no reason whatever to suppose that Parliament, when in 1996, following the decision in Paulino & Edoukou, it amended paragraph 5 of the 1993 Act Schedule (thereby substantially introducing, save only for the Human Rights Convention provisions, what is now paragraph 9), intended to change the meaning of, or approach to, the “frivolous or vexatious” provision which it was re-enacting. Nor do I see any good reason for regarding the present range of possible grounds on which claims may be certified as mutually exclusive. In my judgment these grounds are not intended to involve wholly discrete characterisations, but on the contrary clearly overlap.
11. It follows that the Secretary of State was entitled to issue his certificate under paragraph 9(6)(c) following his consideration of the merits and in the light of his views as to the appellant’s credibility.
12. I can take Mr Kadri’s remaining arguments very shortly. His second argument is that even accepting that the Paulino & Edoukou approach to this “frivolous or vexatious” provision applies today, the Secretary of State’s view of this applicant’s claim was not in fact such as to enable him to certify it properly on this ground. The Secretary of State expressed himself merely as having “serious doubts” as to the appellant’s credibility; that falls short of a conclusion that “the applicant’s credibility is manifestly unreliable” or that “the applicant’s account is totally incredible on [basic] matters” (the language used in Paulino & Edoukou).
13. In my judgment there is nothing in this argument. Reading the decision as a whole it seems to me perfectly plain that the Secretary of State did indeed regard the appellant’s basic case as “manifestly unreliable”/“totally incredible”.
14. Mr Kadri’s third argument is that, even assuming that the Secretary of State was entitled to certify this claim under paragraph 9(6)(c), the Adjudicator was not entitled to uphold the certificate as she did. On the findings made by the Adjudicator, submits Mr Kadri, she clearly regarded the claim as “manifestly fraudulent” (and its supporting evidence as “manifestly false”) within the meaning of paragraph 9(6)(b), rather than as merely “frivolous or vexatious” within paragraph 9(6)(c). Under paragraph 9(2) the Secretary of State’s certificate is only effective to shut out a further right of appeal to the IAT if “the Adjudicator agrees with the opinion expressed in [it]”. On the true view of her determination, submits Mr Kadri, the Adjudicator did not agree with the Secretary of State’s opinion that this was a paragraph 9(6)(c) case: rather she concluded that the claim fell under paragraph 9(6)(b).
15. This too I regard as an impossible argument. In the first place it is not entirely plain that the Adjudicator did regard the claim as “manifestly fraudulent”. But secondly, even if she did, there seems to me no reason why she could not at the same time agree with the Secretary of State that it was “frivolous or vexatious”. As already indicated, in my judgment these characterisations are not mutually exclusive.
16. I do not say that the Adjudicator can uphold a certificate whenever he or she concludes that there are grounds upon which the Secretary of State could properly have certified the claim irrespective of whether or not those were in fact the grounds upon which the Secretary of State certified the claim; on the contrary, it is plain that the Adjudicator’s agreement must ordinarily relate to the same sub-paragraph ((3), (4), (5) or (6)) of paragraph 9 - see this court’s decision in Zenovics -v- Home Secretary [2002] INLR 219, 224 at paragraph 16. Nor, indeed, would it seem to me appropriate for an Adjudicator to uphold a certificate under paragraph 9(6)(b) or (c) by reference to paragraph 9(6)(a) or vice versa. A conclusion, however, that a claim falls within paragraph 9(6)(b) to my mind plainly subsumes the view that it would also fall under paragraph 9(6)(c).
17. Mr Kadri’s fourth argument is this. The appellant raised for the first time before the Adjudicator a contention that if she were returned to Iran she would suffer persecution as a failed asylum seeker. That contention the Adjudicator roundly rejected on the facts and as to that the appellant never obtained permission to challenge it, let alone appeal to this court. Mr Kadri did, however, appear to contend that the very fact that the point was taken before the Adjudicator and had to be dealt with made it impossible for her to uphold the Secretary of State’s certification under paragraph 9(6)(c). That cannot be so. The problems of such an approach were identified by counsel for the Secretary of State in Paulino & Edoukou and recorded in the judgment as follows:

“[Counsel] submitted that the Adjudicator can agree with the certification even if [he] takes the view that there is a different basis for it than that advanced by the Secretary of State having regard to the oral evidence which he, the Adjudicator, has heard. The Special Adjudicator cannot, he submitted, be restricted to agreeing with the Secretary of State’s basis for the certificate because if that were so it would be too easy for an applicant to manipulate his claim in such a way as to deprive the Adjudicator of his ability in law to uphold the certificate. Furthermore, it would, he submits, be difficult to decide when the basis for the claim had changed and sometimes there would be cases in which the applicant, albeit plainly advancing several different explanations to the Secretary of State, advanced yet another one before the Special Adjudicator. In such a situation the Special Adjudicator would be able, submitted [counsel], to uphold the frivolous finding of the Secretary of State, notwithstanding that the material before him was different.”

18. In my judgment it would not be appropriate for an adjudicator to disagree with the Secretary of State’s certificate simply because the appellant had advanced a different case or different evidence on appeal.
19. I add to this judgment just three footnotes. First, that the reference in the Immigration and Nationality Directorate’s guidance under paragraph 6 to a “manifestly unfounded claim [being] one which on a reasonably quick appraisal can be seen to be plainly and obviously without foundation” (for which the authority of Vallaj -v- Special Adjudicator [2001] INLR 455, 472 at paragraphs 53-55 is cited) must now be considered afresh in the light of the recent House of Lords judgments in Thangarasa -v- Home Office [2002] UKHL 36 - see particularly Lord Bingham’s speech at paragraph 14 and Lord Hope’s at paragraphs 32-34.
20. Secondly, I think it right to emphasise a point made by Stanley Burnton J in Gavira -v- Home Secretary [2001] ECHC Admin 250 when deciding that the object of certification under what is now paragraph 9(4)(a) “is to exclude from the normal procedure cases where, on the asylum seeker’s own story, he has no claim to asylum under the Convention”:

“This interpretation … is supported by the consideration that if it included claims for asylum which are not supported by the evidence, such as claims rejected on grounds of credibility, all or virtually all claims of asylum seekers who have not been tortured could be certified. What is plainly intended to be the exception would be the rule. The scope for the right of appeal to the Immigration Appeal Tribunal would be drastically reduced.”

21. It is very important that the Secretary of State does not routinely certify claims (whether under paragraphs 9(4)(b), 9(5)(b), 9(6)(b) or 9(6)(c)) merely because he is rejecting them on grounds of credibility. Such certification is appropriate only when the claims are, for whatever reason, bound to fail.
22. Third and finally this. The Secretary of State’s certificate in this case in fact went only to the appellant’s claim under the Refugee Convention, not her claim under the Human Rights Convention. It was confirmed before us that with regard to the latter the appellant retains her right to seek leave to appeal to the IAT.
23. These footnotes, however, are essentially by the way. I would dismiss this appeal for the reasons earlier given.

Lord Justice Buxton:

24. I agree.

Lord Justice Carnwath:

25. I also agree.
ORDER: Appeal dismissed. The appellant to pay the respondent's costs, the amount to be determined by a Costs Judge under the Community Legal Services (Costs) Regulations 2000. (Order not part of approved judgment)