England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2011

Lord Justice Sullivan:

1. This is the Secretary of State's appeal against the determination dated 26 March 2010 of the Upper Tribunal (Immigration and Asylum Chamber), Senior Immigration Judge Macleman, in which the Senior Immigration Judge rejected the submission of the Secretary of State that there had been a material error of law in the determination dated 13 January 2010 of the Asylum and Immigration Tribunal (Immigration Judge Frankish and Sir Geoffrey James, sitting as a non-legal member) in which the AIT have allowed on asylum grounds the respondent's appeal against the Secretary of State's decision to deport him.
2. The facts are set out in considerable detail in the AIT's determination. For present purposes a brief summary will suffice. The respondent is a citizen of Somalia. There was an issue about his age, but there is no doubt that when he arrived in the United Kingdom in March 2003 and claimed asylum he was an unaccompanied minor. His claim for asylum was refused but he was given leave to remain until 10 April 2006. Between 2005 and 2007 he was convicted of a number of offences, the most serious of which was a conspiracy to wound with intent to commit grievous bodily harm, conspiracy to possess an offensive weapon and violent disorder committed on 28 January 2006, for which he was sentenced to five years detention on 5 September 2007.
3. The respondent was served with a decision to deport him on 9 September 2009. He appealed against that decision on the basis that he was a refugee and would be persecuted on account of his clan membership if he was to be returned to Somalia. The Asylum and Immigration Tribunal accepted that contention and allowed his appeal against deportation on asylum grounds. They did not, however, deal with his parallel appeal on Article 3 grounds under the European Convention on Human Rights.
4. The prohibition against a refoulement of refugees is qualified by Article 33.2 of the Refugee Convention, which provides:

"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

5. Section 72 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") provides, so far as relevant for present purposes:

"(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).

(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is—

(a) convicted in the United Kingdom of an offence, and

(b) sentenced to a period of imprisonment of at least two years.

(6) A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.

(9) Subsection (10) applies where—

(a) a person appeals under section 82, 83, 83A or 101 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, and

(b) the Secretary of State issues a certificate that presumptions under subsection (2), (3) or (4) apply to the person (subject to rebuttal).

(10)The Tribunal or Commission hearing the appeal—

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b)if in agreement that presumptions under subsection (2), (3) or (4) apply (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a)."

6. The Asylum and Immigration Tribunal considered the implications of Section 72 in paragraph 22 of its determination:

"Section 72 of the Nationality, Immigration and Asylum Act 2002 makes a presumption that an appellant should be excluded from asylum protection in the event of having committed a particularly serious crime (defined as one which led to a sentence of more than two years of custody). However (Section 72(10)), this relies upon the respondent first issuing a certificate to the effect that Section 72 applies which the Tribunal must begin with (Section 72(10)(a)) and reject the asylum appeal if the certificate is upheld. There is no such certificate in this case. It did appear to us, however, that the question of Section 72 had been inadequately addressed and we issued directions giving leave for the parties to file and serve further written argument on the point by 13 January 2010."

7. The tribunal then summarised the parties' submissions on this issue and continued:

"Section 72(10) requires the case to commence with consideration of a pre-issued certificate. In the absence of such a pre-issued certificate we decline to enter into consideration of exclusion of asylum save to note that serious offences are at issue but the judge sentenced on the basis of this appellant not actually having caused injury (paragraph 7) and not being a significant risk (paragraph 12). In the event of the appellant continuing with his criminal activities, the respondent will be at liberty to make a further deportation decision with a new Section 72 certificate issued prior to any appeal hearing. We therefore proceed to the substantive asylum issues."

8. It is right to observe that the tribunal's decision not to consider exclusion could not sensibly be described as being only of academic interest on the particular facts of this case because the tribunal went on to say in paragraph 23 of its determination:

"Digressing slightly from the pathway set by EO, the balancing exercise under paragraph 363 referred to above would not have been in the appellant's favour. He has been committing offences since within two years of arrival. He has been assessed as being of high risk of further offences and danger to the public (albeit not adopted in the sentencing remarks). Further victims may therefore be expected from his criminal behaviour…"

9. The Secretary of State applied for reconsideration. Reconsideration was ordered, and the case came before Senior Immigration Judge Macleman in the Upper Tribunal. In paragraph 3 of his determination the Senior Immigration Judge said, correctly:

"It must firstly be decided whether the making of the original decision involved the making of an error on a point of law."

10. The Senior Immigration Judge answered that question in paragraphs 4 to 7 of his determination:

"4. The first substantive point in the respondent's application is at paragraph 3, which criticises the Tribunal's decision in relation to section 72 of the Nationality, Immigration and Asylum Act 2002. The respondent's criticism is not very clear, but as focused by the Presenting Officer at the hearing is to the effect that section 72(2) does not require a pre- issued certificate, as the tribunal thought. Mr Hopkin [who was the presenting officer] referred to Macdonald's Immigration Law & Practice, 6^th ed., paragraph 1299, fn 8 and the Immigration (Notices) Regulations 2003, Regulation 5 […] There is no updating reference in the First Supplement of the 7^th. ed. The legislative and regulatory framework is not changed.

5. I expressed the provisional view at the hearing that the presumption in s.72(2) did not depend on a pre-issued certificate. However, a full reading of s.79(9) and (10) along with Regulation 5(5) bears out the statement in the footnotes of Macdonald that the appellant must be notified of the certification and its effect along with the notice of immigration decision.

6. This point is avoided in the respondent's application, which submits that the panel 'erred in law in not adequately considering this section [72 (10)] -- without explaining how the subsection and regulation are to be interpreted in the way now sought by the respondent.

7. The presumption of exclusion in this case therefore did not arise, and the Tribunal made no error in that respect."

11. The Senior Immigration Judge then considered various other contentions made on behalf of the Secretary of State. He rejected those contentions and concluded in paragraph 14:

"In summary: the respondent has failed to show error of law in respect of the Tribunal's finding that Section 72(10) required a pre-issued certificate. There was thus no presumption to rebut."

12. Before leaving the Senior Immigration Judge's determination it is right to note that the Senior Immigration Judge noted the agreement of both representatives that if the finding on minority clan identity was to stand then the appellant would have the residual protection of Article 3.
13. Regulations 4 and 5 of the Immigration (Notices Regulations ) 2003 are in these terms, so far as material:

"4(1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable."

14. "Immigration decision" has the same meaning as in Section 82(2) of the 2002 Act (see regulation 2) and it is common ground that those decisions listed in Section 82(2) include a decision to make a deportation order (Section 82(2)(j)).
15. Returning to regulation 5:

"5(1) A notice given under regulation 4(1) is to—

(a) include or be accompanied by a statement of the reasons for the decision to which it relates; and

(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person."

That was done and various other requirements as set out in regulation 5(3) and 5(4) were complied with.

16. Regulation 5(5) in these terms:

"Subject to paragraph (6), where the exercise of the right is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal. "

Paragraph 6 of regulation 5 is not relevant for present purposes.

17. To complete the picture, the references in the current edition, the 8^th edition, of Macdonald's Immigration Law and Practice are to be found on pages 914 and 915. In paragraph 12.102 it is said:

"On refusing a person asylum as a refugee the Secretary of State may issue a certificate that a presumption under this provision applies to him or her [foot note 9] and on appeal, the appellate body must begin its substantive deliberation on the appeal by considering its certificate, and if accepting that the presumption applies (having given the appellant an opportunity to rebuttal) must dismiss the appeal insofar as it relies on refugee asylum grounds."

18. Footnote 9 is in these terms. It refers to Section 72(9)(b), and continues:

"The applicant must be notified of the certification and its effects along with a notice of any immigration decision see Immigration (Notices Regulations) 2003 regulation 5(5)."

19. On behalf of the Secretary of State Ms Patry-Hoskins submits that the Asylum and Immigration Tribunal materially erred in law in concluding that the presumption in Section 72 did not apply unless the Secretary of State issued a certificate under Section 72(9) and the Senior Immigration Judge then compounded that error by concluding not merely that a Section 72(9) certificate must be served if the presumption is to apply, but that the person served with notice of a deportation decision under regulation 4 must be notified of the certificate and its effects in the notice of decision or in an accompanying statement in accordance with regulation 5(5).
20. So far as the first of those alleged errors is concerned, she submits that this court's decision in TB (Jamaica) [2008] EWCA Civ 977 is clear authority for the proposition that the presumption in Section 72 applies, whether or not the Secretary of State has issued a certificate under Section 72(9).
21. TB (Jamaica) was a case where, for whatever reason, neither Article 33(2) or Section 72 had been relied upon by the Secretary of State in TB's appeal to the AIT against deportation which the AIT had allowed on both refugee convention and European Convention grounds. The Secretary of State did not appeal against the tribunal's decision, but she then refused asylum and decided to grant TB temporary admission only. The issue before the court was whether the Secretary of State's decision was an abuse of power because she had failed to implement the tribunal's decision having not appealed against it. Bean J held that the decision was an abuse of power and the Court of Appeal upheld his decision.
22. In paragraph 28 of his judgment, with which Rix LJ and Thorpe LJ agree, Stanley Burnton LJ set out the structure of Section 72. Having done so, he said this in paragraph 29:

"Given the general wording of subsection (1), I accept that the presumptions are to be applied generally, both by the Secretary of State when making a decision on an application for asylum and by the Tribunal on the hearing of an appeal. (For present purposes, it is unnecessary to consider proceedings before the Special Immigration Appeals Tribunal separately.) In my judgment, once the facts giving rise to the statutory presumptions have been established, it would be an error of law for an Immigration Judge to fail to apply a presumption required by the section, irrespective of whether or not the Secretary of State had issued a certificate under subsection (9)(b). Indeed, Mr Jay accepted that there has been no statutory certificate in this case. The only effect of a certificate is to require the Tribunal to address the certificate and any issue as to the rebuttal of the presumption of dangerousness at the beginning of the hearing of the appeal. I assume that the certificate is of greater value where the conviction relied upon is outside the United Kingdom. An appellant may seek to displace the certificate by showing that he has not in fact been convicted of a relevant offence or to rebut the presumption of dangerousness by establishing that he does not in fact constitute a danger to the community."

23. TB (Jamaica) was applied by the AIT in the case of IH (Section 72 Particularly Serious Crime) Eritrea [2009] UK AIT 00012. The AIT said in paragraph 25 of its determination in that case:

"The presumptions in s.72 apply in all cases, where applicable, heard by the Tribunal (SSHD v TB (Jamaica) [2008] EWCA Civ 977, at [29] per Stanley Burnton LJ). However, s.72(9) and (10) create a mechanism that may be invoked by the Secretary of State which affects the Tribunal's process when deciding asylum appeals. Section 72(9) permits the Secretary of State to issue a certificate that the presumptions under the relevant subsection of s.72 apply. When this is done, as it was in this case, s.72(10) requires the Tribunal to determine whether the presumptions do in fact apply to the asylum appeal and, if they do, dismiss the appeal. The effect is to alter the normal (and perhaps more natural) way of dealing with a case: first, deciding whether the individual is a refugee; and secondly, only if he is, deciding whether notwithstanding that he may still be refouled because Art 33(2) applies. In cases where a certificate is issued under s.72(9), the refoulement issue is decided first and only if it does not apply can the Tribunal consider whether the individual is in fact a refugee because he has a well-founded fear of persecution for a Convention reason. Of course, in practice the evidence and any risk on return would need to be considered in order to decide whether the

individual's return would breach Art 3 of the ECHR. The decision of the Panel in this appeal is one such example. Section 72(10) does not prevent this, but does prevent the Tribunal from making a finding that he is a refugee albeit one who can be refouled."

24. The compatibility of the presumption in section 72 with Article 33(2), and in particular the question whether the presumption is rebuttable not merely as to danger to the community but also as to the seriousness of the offence, was considered by the Court of Appeal in EA (Serbia) v SSHD [2009] EWCA Civ 630. The issue in the present case did not arise in EA (Serbia) because the Secretary of State had issued certificates under Section 72(9) in both of the cases which were considered by the Court of Appeal (see paragraphs 13 and 111 of the judgment of Stanley Burnton LJ, with whom Hooper LJ and Laws LJ agreed). However, the Court of Appeal did consider and endorse, with one immaterial exception, the AIT's approach to Section 72 in its determination in IH (see paragraphs 2 and 88 of Stanley Burnton LJ's judgment).
25. So far as regulation 5(5) is concerned, the submission made on behalf of the Secretary of State is very short. Regulation 5(5) is concerned with those cases where the exercise of the right of appeal is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act. Part 5 of the 2002 Act is concerned with immigration and asylum appeals. Section 72 is in Part 4 of the Act, which is concerned with detention and removal. Part 5 of the Act does contain, in Sections 88-99 under the sub-heading "Exceptions and Limitations", a number of exceptions to and limitations upon the right of appeal under Section 82. Ms Patry-Hoskins submits that regulation 5(5) is concerned with those exceptions or limitations in Part 5 and not with anything which is contained in Part 4 of the 2002 Act, even if it might be described as some form of exception or limitation.
26. On behalf of the respondent Mr De Mello submitted that, bearing in mind the provisions of paragraph 364 of the Immigration Rules, section 72 could and should be construed so as to require the Secretary of State to issue a certificate under Section 72(9) if the presumption was to be applied. He submitted that the observations of Stanley Burnton LJ in paragraph 29 of TB (Jamaica) were obiter and in any event that they were wrong, and that the observations of the editors of Macdonald in footnote 9 on page 915 of the 8^th edition were correct. There must be a certificate under Section 92(9) if the presumption is to be invoked and the appellant must be told of the effect of that certificate in the regulation 5(5) notice. He submitted that the regulation 5(5) applied because Section 72(9) referred to an appeal under Part 5 of the Act. The right of appeal against a decision to make a deportation order in Section 82(2)(j) is contained in Part 5 of the Act. He sought to support his submissions by reference to Council Directives 2004/83/EC and 2005/85/EC.

Conclusions

27. Whether or not the proposition in paragraph 29 of TB (Jamaica) that the Section 72 presumption applies whether or not the Secretary of State has issued a certificate under Section 72(9) was obiter, it was, in my judgment, plainly correct. Subsections (1), (2) and (6) in Section 72 set out clearly the presumption that is to be applied generally; there is no suggestion that the application of that presumption is to be subject to the certification process in subsections (9) and (10). Subsections (9) and (10) merely provide a self-contained procedural code which, as the tribunal observed in the case of IH, reverses the normal course of an appeal in those cases where a certificate is issued, but the Secretary of State is certainly not under any obligation to issue a certificate in order to bring the presumption into play.
28. As Stanley Burnton LJ said, a certificate has the limited procedural effect of requiring the tribunal to first address the certificate and any issue as to the rebuttal of the presumption which is of general application, but it is to be noted that the appellant may rebut not merely the presumption of dangerousness but also the presumption of serious criminality (see the decision of the Court of Appeal in EN (Serbia)).
29. It seems to me that this conclusion follows inexorably from the plain wording of Section 72, and the provisions of Rule 364 are, with respect to Mr Mello's submissions, of no relevance whatsoever to that question of interpretation. On any basis, what is said in a rule could not displace the clear meaning of primary legislation and the meaning of Section 72 is plain.
30. It is also right to observe that neither the text on page 914 nor footnote 9 on page 915 of Macdonald provides any support for the proposition that the presumption in Section 72 applies only if there has been certification under Section 79(9). Indeed the text that I have read out is entirely contrary to that proposition.
31. Turning then to the only remaining issue -- that is the proposition in footnote 9 that an appellant served with notice of deportation where a Section 72(9) certificate has been issued must be notified of the certificate and its effects in accordance with regulation 5(5), I have no hesitation in saying that, with the greatest respect to the learned editors of Macdonald, that proposition is simply wrong. Even if a certificate under Section 79(9) can be described as imposing a restriction on the right of appeal under Section 82(2)(j) (which is of course within Part 5 of the Act), it is a "restriction" which is imposed by Part 4 of the Act and not by an exception or limitation by virtue of a provision of Part 5. Regulation 5(5) applies to the exceptions and limitations that are listed in Sections 88 to 99 in Part 5 of the Act.
32. The provisions in the directives referred to by Mr De Mello are, in my judgment, of no assistance in the present case, principally because they are concerned to provide procedural protection to those who have been given refugee status where that status is being withdrawn by the Secretary of State. In effect, Mr De Mello invites us to read regulation 5(5) as though it said:

"Where the exercise of the right of appeal under Part 5 is restricted by an exception or limitation, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal."

The short answer to that submission is that that is not what the regulation says, it is clearly concerned with particular types of exception or limitation; that is to say those which are found in Part 5 of the Act.

33. There are, furthermore, good practical reasons why the issuing of a certificate under Section 72(9) -- if the Secretary of State decides to adopt that course -- may postdate the regulation 4 notice, for example where in response to a decision to make a deportation order an appellant raises, perhaps for the first time, a refugee claim, to which the Secretary of State then responds by serving a certificate under section 72(9) as well as relying upon the general presumption that is contained in Section 72(1), (2) and (6).

Conclusion

34. For these reasons I am satisfied that both the Asylum and Immigration Tribunal and the Senior Immigration Judge materially erred in law in the respects that I have described and in failing to consider the presumption in Section 72. Although Ms Patry-Hoskins submitted that it was "obvious" that this appellant could not rebut the presumption, this is a case where in my judgment it would be right to remit the matter to the First Tier Tribunal in order to decide whether or not this appellant is able to rebut the Section 72 presumption. Although the Asylum and Immigration Tribunal did not deal with the appellant's Article 3 appeal, it is common ground that the finding of clan membership, which founded the appellant's successful asylum claim, will also entitle him to Article 3 protection. Thus the only issue would be whether or not he is able to rebut the presumption in Section 72. All the other factual findings of the Asylum and Immigration Tribunal are to be preserved.

Lord Justice Patten:

35. I agree.

Lady Justice Arden:

36. I also agree.

Order: Appeal granted