England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 October 2002

Mr Justice Keith :

Introduction

1. The Claimant comes from Zimbabwe. He is a member of the Ndebele tribe. He claims that he was persecuted as a result of his membership of a pressure group, the Umkhosi Kazulu, which seeks compensation for victims of atrocities against the Ndebele tribe in Matabeleland in the 1980s. Eventually he fled from Zimbabwe, and arrived in the United Kingdom on 13 August 2001. On his arrival, he applied for permission to enter the United Kingdom as a visitor, but when his application was refused, he claimed asylum, contending that his return to Zimbabwe would constitute a breach by the United Kingdom of its obligations under the United Nations Convention relating to the Status of Refugees (“the Refugee Convention”) (“the asylum claim”). In addition, it was contended on his behalf that his return to Zimbabwe would constitute a breach by the United Kingdom of his human rights under the European Convention of Human Rights (“the Human Rights Convention”) (“the human rights claim”).
2. These claims were refused by the Defendant, the Secretary of State for the Home Department (“the Secretary of State”), on 20 August 2001, and the Claimant was therefore again refused leave to enter the United Kingdom. The Secretary of State also issued a certificate under para. 9 of Sch. 4 to the Immigration and Asylum Act 1999 (“the 1999 Act”). That certificate was (a) that the asylum claim was one to which para. 9(6)(a) applied, because the asylum claim had been made after the Claimant had been refused leave to enter the United Kingdom under the Immigration Act 1971, and (b) that that claim was not one to which para. 9(7) applied, because the evidence adduced in its support did not establish a reasonable likelihood that the Claimant had been tortured in the country to which he was to be sent. No comparable certificate was issued by the Secretary of State relating to the Claimant’s human rights claim, presumably because the question of certifying it had not been addressed.
3. In due course, the Claimant appealed against the latter refusal of leave to enter the United Kingdom. The appeal was heard on 2 October 2001. The adjudicator concluded that the Claimant’s return to Zimbabwe would not amount to a breach by the United Kingdom of its obligations under the Refugee or Human Rights Conventions, and he dismissed the appeal in a decision promulgated on 15 October 2001. He did not believe the Claimant’s story, and he agreed with the opinions expressed in the certificate. One of the reasons why he did not believe the Claimant’s story was because there was no objective evidence that members of the Umkhosi Kazulu were currently being persecuted. Indeed, the objective evidence was to the contrary, and he referred to an announcement made by President Mugabe in 1999 that the Government was willing to compensate the families of the many thousands of people who had been killed during the insurgency in Matabeleland in the 1980s.
4. Following the dismissal of his appeal, the Claimant instructed new solicitors, and they submitted recent news reports and expert evidence to the Secretary of State which was said to cast serious doubt on the conclusion of the adjudicator that members of the Umkhosi Kazulu were not being persecuted. Thus, to the extent that the absence of any relevant objective evidence had been relied upon by the adjudicator to cast doubt on the Claimant’s credibility, the new material was said to undermine in a fundamental way the adjudicator’s rejection of the Claimant’s credibility.
5. Before the Secretary of State had had a chance to consider these representations, the Claimant’s solicitors on 13 December 2001 issued the current claim for judicial review, since otherwise the directions for the Claimant’s removal from the United Kingdom which had by then been given would have been put into effect. The principal decision which they wished to challenge was the adjudicator’s substantive decision to dismiss the Claimant’s appeal, but they also wished to challenge the certificate issued by the Secretary of State. It was said that the Secretary of State should not have issued the certificate in the first place, that once issued it should have been withdrawn, and that in any event it should not have been upheld by the adjudicator.
6. The Claimant’s application for permission to proceed with his claim for judicial review was considered on the papers by Sullivan J. without a hearing. On 12 March 2002 he refused the application. The Claimant renewed his application, and it was then considered at an oral hearing by Sir Oliver Popplewell. The only issue which the Claimant then wished to raise related to the certificate, and on 30 April 2002 Sir Oliver gave the Claimant permission to proceed with a claim for judicial review on that issue only. That was the only issue which was argued before me.

The statutory framework

7. Para. 22(1) of Sch. 4 to the 1999 Act provides, so far as is material:

“........any party to an appeal........to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.”

However, para. 9 of Sch. 4 contains a set of provisions which remove that right of appeal in certain cases. The core provision is para. 9(2), which provides:

“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 of appeal to the Immigration Appeal Tribunal. ”

The reference to the Secretary of State’s certificate is a reference to para. 9(1), which provides:

“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-paragraphs (3), (4), (5) or (6) applies; and

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

The phrase “contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee and Human Rights Conventions: see para. 9(8).

8. An appeal to an adjudicator by a person whose claim for asylum has been refused is an appeal under Part IV of the 1999 Act. The certificate which the Secretary of State issued was in the terms of paras. 9(6)(a)(i) and 9(7), which provide:

“(6) This sub-paragraph applies to the claim if -

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

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

(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.”

As I have said, the opinion expressed in the certificate which the Secretary of State issued in the Claimant’s case related to the asylum claim only. Thus, one of the consequences of the adjudicator agreeing with the opinion expressed in the certificate was that the Claimant could not rely, on any appeal to the Immigration Appeal Tribunal (“the Tribunal”), on the claim that his return to Zimbabwe would amount to a breach by the United Kingdom of its obligation under the Refugee Convention.

The impact of the Zenovics case

9. But where did that leave the human rights claim which the Secretary of State had not certified? The answer at the time was provided by the starred decision of the Tribunal in Zenovics v Secretary of State for the Home Department (Appeal no. 21490/2000). The Tribunal held that even if the Secretary of State only certified an asylum claim, the appellant could not rely in any appeal to the Tribunal on his human rights claim either. The Tribunal felt unable to decide otherwise in the light of the language of para. 9, but it was so concerned about the unfairness which this result produced that it requested the Secretary of State to adopt the policy of either certifying both claims or certifying neither.
10. However, on 7 March 2002 the Court of Appeal allowed Mr Zenovics’ appeal from the Tribunal: R (on the application of Zenovics) v. Secretary of State for the Home Department [2002] EWCA Civ 273. The effect of the Court of Appeal’s judgment is that the certification of the Claimant’s asylum claim did not prevent the Claimant from appealing to the Tribunal against the dismissal by the adjudicator of his appeal on the ground that his human rights claim should have been upheld. Accordingly, on 27 May 2002 the Immigration Appellate Authority wrote to the Claimant’s solicitors informing them that the Claimant had the right to appeal to the Tribunal against the dismissal by the adjudicator of his appeal on that ground within 10 days. The Claimant exercised that right, and in due course the Tribunal granted the Claimant leave to appeal, no doubt in the light of the fresh evidence which the Claimant’s solicitors had submitted. The Claimant’s appeal against the dismissal by the adjudicator of his appeal on the ground that his human rights claim should have been upheld was heard on 25 September 2002, and judgment was reserved. It has not yet been handed down. If it has, I have not been told about it.
11. But what about the asylum claim? It is important to note that the Court of Appeal did not quash the certificate in Zenovics. The case merely concerned the effect of the certificate on the human rights claim. The certificate still prevented Mr Zenovics from relying on the asylum claim as a ground of appeal. The Court of Appeal was alive to the fact that one effect of its decision would be the possibility of inconsistent findings following a successful appeal on the human rights claim while an appeal on the asylum claim was barred. The Court held at [32] that this was no more than “a feature of any appellate system”.
12. But the Claimant still wished to appeal to the Tribunal against the dismissal by the adjudicator of his asylum claim. At first blush, the Claimant would not need to appeal to the Tribunal on that ground if the Tribunal decides to allow the appeal on the ground that his human rights claim should have been upheld. But it is said that the Claimant would be in a better position if he was permitted to remain in the United Kingdom as a refugee than as someone whose human rights would be infringed if he was returned to Zimbabwe. Ms Stephanie Harrison for the Claimant told me that he would be given indefinite leave to remain in the United Kingdom, rather than 4 years’ exceptional leave, and he would be entitled to enhanced rights of family re-union. If that is correct, it follows that his ability to appeal to the Tribunal against the dismissal by the adjudicator of his appeal on the ground that his asylum claim should have been upheld would give him greater practical benefits than if his appeal were allowed solely on the ground that his human rights claim should have been upheld. That is why, both before and after the hearing before Sir Oliver Popplewell on 30 April 2002, the Claimant’s solicitors continued to press the Secretary of State to withdraw the certificate so that the Tribunal could consider the asylum claim as well. In addition to the new evidence, and the other arguments which were said to undermine the adjudicator’s finding on the Claimant’s credibility, they relied on the incompetence of the Claimant’s previous representatives (who had represented him on the hearing of the appeal before the adjudicator). Indeed, on 16 September 2002 the Claimant’s solicitors informed the Secretary of State that the Immigration Services Commissioner had decided to lay a disciplinary charge against the Claimant’s former representatives, and that they had been prohibited from providing immigration services or advice indefinitely. The Secretary of State, however, was not prepared to withdraw the certificate.

The application for an adjournment

13. At the commencement of the hearing, Ms Harrison sought the adjournment of the hearing until after the Tribunal had given judgment on the Claimant’s current appeal. If the appeal is dismissed, there would be no practical basis on which the current application for judicial review could be continued, since both the asylum and the human rights claims were based on the same facts and for all practical purposes they stood or fell together. If the appeal is allowed to the extent that the Claimant’s human rights claim is remitted to the adjudicator, it would make sense for the adjudicator to reconsider the asylum claim as well. The adjudicator could not do that if the current claim for judicial review was dismissed, but it is said that for technical reasons he might not be able to do that even if the current claim for judicial review succeeds.
14. It would, I think, have been much more appropriate for this claim for judicial review to have been determined before the appeal to the Tribunal was heard. The claim for judicial review would have decided whether the Claimant could rely on the appeal on the asylum claim as well as the human rights claim. Ms Harrison accepted that that would have been the more appropriate course to take. Moreover, the current application for an adjournment is being made far too late. If it was to be made at all, it should have been made when it was known that the appeal to the Tribunal was due to be heard, rather than after it had been heard. Ms Harrison did not dissent from that either.
15. But the critical point is that whether there can be an appeal to the Tribunal on the asylum claim - and a subsequent remission to the adjudicator - is the very issue which this claim for judicial review will decide. If an appeal on the asylum claim can only proceed if the certificate is either quashed or withdrawn, there is no basis on which the Tribunal can consider an appeal on the asylum claim, let alone remit the asylum claim to be reconsidered by an adjudicator, until the claim for judicial review has been determined. Thus, although the dismissal of the current appeal would make the Claimant’s claim for judicial review academic, the claim for judicial review has to be decided before any other steps can be taken if the current appeal is allowed. I saw no technical bar on the adjudicator reconsidering the claimant’s asylum claim, and since I discerned no prejudice whatever to the Claimant by his claim for judicial review being decided now, I refused the application for an adjournment.

The withdrawal of the certificate

16. It is no longer sought to challenge the Secretary of State’s decision of 20 August 2001 to certify the asylum claim, or to challenge the adjudicator’s decision of 15 October 2001 to uphold the certificate. The decisions which are challenged are (a) the failure of the Secretary of State to withdraw the certificate on 2 October 2001 at the hearing of the Claimant’s appeal to the adjudicator, and (b) the decision of the Secretary of State not to withdraw the certificate after the Court of Appeal’s judgment in Zenovics on 7 March 2002. There is a distinct procedural hurdle in the Claimant’s path in challenging the latter decision, because the claim form (which as I have said had been issued on 13 December 2001) had not been amended to state the facts relating to the latter decision or even to seek permission to proceed with a claim for judicial review of it.
17. The argument that the Secretary of State should have withdrawn the certificate at the hearing of the Claimant’s appeal is based on the policy which the Secretary of State adopted to avoid the unfairness which the Tribunal’s decision in Zenovics perpetuated. The Secretary of State adopted the policy which the Tribunal had requested him to of either certifying both claims or certifying neither. There is no evidence that that policy had been put in place by 20 August 2001 when the Secretary of State certified the Claimant’s asylum claim, but it is agreed that I should proceed on the assumption that the policy was in place by the hearing of the Claimant’s appeal on 2 October 2001. That policy contained transitional arrangements to cover those cases in which both asylum and human rights claims had been made and refused but only the asylum claim had been certified, and where the possible certification of the human rights claim had been overlooked. The Claimant’s case fell into that category. The transitional arrangements were as follows:

“Where these cases come before the [Immigration Appellate Authority], the Presenting Officer should consider whether the human rights claim merits certification. If it does, [he] should inform the adjudicator of that fact and explain that the asylum certificate is therefore being maintained. (The [Presenting Officer] should not actually ‘certify’ the human rights claim but simply inform the adjudicator that it merits certification; if the adjudicator agrees [with] the asylum certificate, both aspects of the claim are prevented from being appealed to the Tribunal). If the human rights claim does not merit certification, the Presenting Officer should withdraw the asylum certificate. This approach is consistent with comments made in Zenovics by [Mr] Justice Collins: ‘we would hope that the Secretary of State, if necessary through the [Home Office Presenting Officer], would decide whether to maintain the certification as applicable to both claims........ or to withdraw it’.”

18. Without the record of proceedings, it is not possible to tell whether the presenting officer complied with this policy. The adjudicator’s determination shows that the presenting officer did not withdraw the certificate, but that may not have been because he took the view that the human rights claim merited certification, but because he had not addressed that question at all. There is no evidence as to what the presenting officer intended to do, and I must therefore proceed on the assumption most favourable to the Claimant, namely that the presenting officer did not comply with the policy because he did not address the question whether the human rights claim merited certification.
19. But the critical question is whether the result would have been any different if the presenting officer had complied with the policy by considering whether the human rights claim merited certification. In my opinion, there is no possibility that he would have concluded that it merited certification. The human rights claim had been made after the Claimant had been refused leave to enter, and accordingly the conditions for certifying the human rights claim had been satisfied. But more importantly the asylum and human rights claims were founded on the same facts and stood or fell together. In these circumstances, the presenting officer would inevitably have concluded that since in the Secretary of State’s opinion the asylum claim merited certification so too would the human rights claim. It follows that the challenge to the Secretary of State’s failure to withdraw the certificate at the hearing on 2 October 2001 must fail.
20. I turn to the argument that the Secretary of State should have withdrawn the certificate after the Court of Appeal’s judgment in Zenovics. Mr Andrew Hunter for the Secretary of State argued that, once a certificate had been confirmed by the adjudicator, the Secretary of State did not have the power to withdraw it. That argument is based on the language of para. 9(2): if an appellant has no right of further appeal to the Tribunal once the adjudicator has confirmed the certificate, it is the fact of that certificate which has barred the appeal, and the Secretary of State has no further say in the matter. I cannot go along with this argument. Para. 9(2) proceeds on the assumption that the Secretary of State maintains the opinion expressed in the certificate. Mr Hunter accepted, of course, that if the Secretary of State changes his mind before the appeal is heard he can withdraw the certificate then. Why should he not be able to withdraw the certificate after the appeal has been heard if it is only then (perhaps in the light of new evidence) that he changes his mind on the matters to which the certificate relates? I would only go along with Mr Hunter’s argument if I felt that the statutory language compelled me to. In my opinion, it does not. Para. 9(2) deals, I think, only with cases in which the Secretary of State maintains his opinion. It does not seek to provide what is to happen if he decides not to. It follows that I do not regard para. 9(2) as amounting to a statutory bar on the Secretary of State’s power to withdraw the certificate even if the adjudicator has previously confirmed it.
21. So the outcome of this claim boils down to whether it was unreasonable in the public law sense for the Secretary of State not to withdraw the certificate in the light of the events which occurred after the Court of Appeal’s judgment in Zenovics. I have reached the conclusion that it was unreasonable for him not to do so. The Court of Appeal’s judgment in Zenovics meant that the Claimant had the right of appeal to the Tribunal on the human rights claim. In due course, the Claimant obtained the Tribunal’s leave to do so. The Tribunal would have been alive to the fact that the Claimant’s asylum and human rights claims had been rejected on the basis of a lack of credibility on his part, but it would also have been alive to the fact that the fresh evidence was said to undermine one of the grounds on which his credibility had been rejected. Since the asylum and human rights claims are based on the same facts and for all practical purposes stand or fall together, it is fair to assume that, but for the certificate, the Tribunal would have given the Claimant leave to appeal on the asylum claim as well. If the fresh evidence was such as to cause the Tribunal to conclude that the appeal on the human rights claim had “a real prospect of success” (which is what the Tribunal must have meant, in the light of rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000, when it concluded that the grounds were “most clearly arguable”), the Tribunal would have concluded that the asylum claim had a real prospect of success as well.
22. Moreover, for some time since the certification of the Claimant’s asylum claim, the Secretary of State’s policy has been not to return failed asylum-seekers to Zimbabwe in the light, amongst other things, of concerns expressed by the UNHCR: see the UNHCR’s letter to the Refugee Legal Centre of 12 June 2002, a copy of which the Claimant’s solicitors sent to the Secretary of State. That does not mean, of course, that failed asylum-seekers from Zimbabwe should now be granted asylum, but it does indicate that it is feared that for the time being failed asylum-seekers may not be given adequate protection from ill-treatment on their return.
23. The certification procedure is designed to avoid a multiplicity of unmeritorious appeals. It proceeds on the assumption that claimants whose claims fall within paras. 9(3), 9(4), 9(5) or 9(6), and who the evidence does not suggest were likely to have been tortured, have unmeritorious appeals. But where the Tribunal has determined that the appeal has merit to such an extent as to find that the appeal has a real prospect of success, the Secretary of State can hardly rely on a certification procedure which proceeds on the assumption that certificates are issued in respect of unmeritorious claims.
24. In reaching the conclusion which I have, I have not overlooked Mr Hunter’s point that the Court of Appeal in Zenovics appreciated that there could be an inconsistency between the Secretary of State’s and the adjudicator’s conclusion on the asylum claim, and the Tribunal’s conclusion on the human rights claim, but that that was a consequence of the effect of certifying one claim and not the other. Although the Court of Appeal said that that was a feature of the appellate system, the question whether in the light of a possible inconsistency the Secretary of State should withdraw the certificate is another matter altogether. For the reasons I have given, his refusal to do so after the Tribunal had given leave to appeal on the human rights claim was unreasonable in the public law sense.
25. Before any effect can be given to this conclusion, the procedural hurdles in the Claimant’s path have to be surmounted. In that connection, I have read with care the transcript of the hearing before Sir Oliver Popplewell. When Sir Oliver granted permission to proceed with the claim for judicial review, he did so on the basis that, if the asylum claim was to proceed, that should be decided by the Tribunal, because the Claimant already had the right to appeal to the Tribunal on the human rights claim. Since he was told by Ms Harrison that “the most appropriate option” for that end to be achieved was for “the certificate [to] be withdrawn”, he must be regarded as having given the Claimant permission to proceed with a challenge to the Secretary of State’s refusal to withdraw it. The technical difficulty, as I have said, is that the claim form was not amended to reflect the fact that it was that refusal which was being challenged. The proposed amendments to the claim form which are designed to rectify that omission were sent to me following the hearing of this claim, and the Secretary of State has not sought to make any representations on them. In the circumstances, and since the Secretary of State has not been prejudiced, I give the Claimant permission to amend the claim form, which can now be filed in the form in which it was sent to me.

The appropriate order

26. In the event, I do not propose to make any order on the claim at present. That is because, as I said earlier when dealing with the Claimant’s application for an adjournment, it would serve no practical purpose if the current appeal to the Tribunal on the human rights claim fails. However, if the current appeal to the Tribunal succeeds, the Administrative Court Office should be informed of that, and the claim should then be referred back to me. I will then make an order which has the effect of enabling the Claimant to appeal to the Tribunal on the asylum claim. I leave until then the question whether the order should be an order quashing the certificate or one requiring the Secretary of State to withdraw it, but the parties may submit short written submissions on the topic if they cannot agree the appropriate order between themselves. As a matter of form, though, I give both parties liberty to restore the claim before me.