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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SIR EDWIN JOWITT)

		Royal Courts of Justice Strand London, WC2 Friday, 1st November 2002

1. LORD JUSTICE DYSON: This is a renewed application for permission to apply for judicial review of the decision of the immigration adjudicator of 17th December 2001, whereby he dismissed the appellant's appeal against the refusal by the Secretary of State of his asylum claim. He upheld the Secretary of State's certificate to the effect that the claim was one to which paragraph 9(4)(a) of Schedule 4 to the 1999 Act applied and that paragraph 9(7) did not apply.
2. On 4th July 2002 Sir Edwin Jowitt refused the application. He held that the decision to uphold the certificates was open to challenge, as I understand it for lack of reasons. He then turned to consider, in the light of the merits of the asylum claim, whether he should exercise his discretion to grant permission to apply for judicial review. In the course of his judgment he said this:

"9. ... That, it seems to me, requires me to look at the merits of the asylum appeal. It had, in my judgment, no merits in that the adjudicator was entirely entitled to come to the conclusion which he did on the material before him and therefore to reject the appeal. That being so, and having looked at the material, I have asked myself whether there is any real prospect at all of the Immigration Appeal Tribunal giving leave to appeal on the basis as required by the rules that they are satisfied an appeal would have a real prospect of success.

10. In my judgment, and drawing upon my experience of being able to understand from their determinations the practice of the tribunal, there is no prospect in this case of leave to appeal being granted by the tribunal. That being the case, it seems to me that further litigation in this case on the question of the certification would have no useful purpose. Therefore I refuse permission."

3. The effect of the certification is that if the adjudicator agrees with it, the appellant is deprived of his right to seek leave to appeal from the Immigration Appeal Tribunal (see paragraph 9(2) of Schedule 4). In respect of the challenge to the certificates the adjudicator merely said "I uphold the certificates", without any reasons at all. This was plainly not sufficient: see Atabaky [2002] EWCA Civ 234 at paragraph 18. I agree with the judge that this meant that the adjudicator's determination was defective both in relation to paragraph 9(4)(a) and 9(7).
4. Mr Manjit Gill QC submits that the judge erred in exercising his discretion to refuse relief, notwithstanding the adjudicator's erroneous approach to the question of certification.
5. Since I am proposing to grant permission, it is not appropriate or necessary for me to give an extended judgment. Suffice it to say that it seems to me that at paragraphs 9 -14 of his skeleton argument, Mr Manjit Gill has set out reasons which are sufficient to justify the grant of permission simply on the grounds that the certificates are arguably flawed. He relies in particular on passages in the judgment of Latham LJ in Atabaky, for example at paragraph 27.
6. Mr Manjit Gill is not, however, content merely to rely on the fact that there is an arguable challenge to the certificates as itself being sufficient to require the court to exercise its discretion to grant relief. He wants to go further and to seek to persuade the court to set aside the decision of the adjudicator on the substantive asylum claim itself. Moreover, he seeks to rely on the matters on which that challenge is based as supporting his case that the court should, in the exercise of its discretion, grant permission to apply for judicial review of the decision.
7. He has set out three grounds at paragraph 17 and following of his skeleton argument. The first is that the adjudicator failed to deal with a point that was before him, namely that there was a real risk that, as a failed asylum seeker, he would be liable to persecution. His second point is that the adjudicator misinterpreted and misrepresented an important part of the expert evidence of Mr Kennes, in relation to the plausibility of the account given by the appellant.
8. It seems to me that those are matters which ought properly to be considered by the Administrative Court when it deals with this application.
9. The third ground relied upon by Mr Manjit Gill is expressed to be an unfairness and an irrationality point. He identifies a number of elements in the adjudicator's determination, set out in sub -paragraphs (a) to (k). He says that a number of findings were made by the adjudicator which were relevant to his conclusion that the appellant lacked credibility, and that those findings were on matters which were not put to the appellant for his comment. That is the unfairness point. He also identifies a number of what he calls illogicalities in the reasoning of the adjudicator as well.
10. As I pointed out in the course of argument, I see considerable difficulties in Mr Manjit Gill's reliance on these points. But I have not felt it right to grant him permission on terms which would deny him the opportunity of developing his arguments in ground three. I merely state that it seems to me that he may well have an uphill struggle in persuading the court to quash the decision of the adjudicator on the substantive asylum claim on the basis of these points.
11. But for the reasons that I have given, I am satisfied that this is a case in which I ought to give permission to apply for judicial review, which I do.

ORDER: Application for permission to apply for judicial granted; permission to amend the grounds of appeal within 14 days; costs of this application reserved to the hearing; assessment of costs on a public funding basis.

(Order not part of approved judgment)