QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF J
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MR JAMES STRACHAN (instructed by Treasury Solicitors) for the DEFENDANT
Hearing dates: 17, 18, 23 and 24 June 2008
Crown Copyright ©
The Honourable Mr Justice Stadlen:
It is not for the Claimant to dictate the date by which the defendant must consider any further representations (so long as the timetable adapted by the defendant is reasonable). The defendant had undertaken to consider the representations that were made on 27 June and 6 September 2006 and in due course the Claimant will no doubt be informed of the defendant's conclusions. However, given my decision on ground two, it would be helpful if the defendant were able to consider these further representations in advance of the hearing of the application for judicial review as regards ground two. Accordingly I decline to grant permission as regards the first ground.
I consider there is a tension between the decision of the defendant that the Claimant had a fresh asylum claim and Article 3 ECHR claim (that meant he considered on the basis of significantly different material there was a realistic prospect of success) on the one hand and the decision that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (thereby justifying certification under section 96) on the other. I consider it right to give leave so that the court can consider whether those decisions are inconsistent and whether the decision to certify is unreasonable."
Ground Two: The challenge to the decision to certify
(i) Tamil ethnicity.
(ii) Previous record as a suspected or actual LTTE member or supporter.
(iii) Previous criminal record and/or outstanding arrest warrant.
(iv) Bail jumping and/or escaping from custody.
(v) Having signed a confession or similar document.
(vi) Having been asked by the security forces to become an informer.
(vii) The presence of scarring.
(viii) Returned from London or other centre of LTTE activity or fund-raising.
(ix) Illegal departure from Sri Lanka.
(x) Lack of ID card or other documentation.
(xi) Having made an asylum claim abroad.
(xii) Having relatives in the LTTE.
The legislative framework
The Statutory Provisions in force at the time of the Decision Letter on 15 June 2006
" Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
"In this Part "immigration decision" means –(a) refusal of leave to enter the United Kingdom,…
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,…..
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in the United Kingdom)"
"(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."
"(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds –(a) that the decision is not in accordance with the immigration rules;…(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;…..(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;(e) that the decision is otherwise not in accordance with the law;(f) that the person taking the decision should have exercised differently a discretion conferred by the immigration rules;(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
"(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2)If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3)Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced."
"120 Requirement to state additional grounds for application
(1) This section applies to a person if –
a) he has made an application to enter or remain in the United Kingdom, or
b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state –
(a) his reasons for wishing to enter or remain in the United Kingdom, and
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in-
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
In the application of section 96 -
(a) a reference to an appeal or right of appeal under a provision of this Act includes a reference to an appeal or right of appeal under the Immigration and Asylum Act 1999,
(b) a reference to a requirement imposed under this Act includes a reference to a requirement of a similar nature imposed under that Act,
(c) a reference to a statement made in pursuance of a requirement imposed under a provision of this Act includes a reference to anything done in compliance with a requirement of a similar nature under that Act, and
(d) a reference to notification by virtue of this Act includes a reference to notification by virtue of any other enactment.
"Earlier Right of Appeal
(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies –
a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),
b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision,
(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies –
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in response to that notice."
(5) Subsections (1) and (2) apply to prevent a person's right of appeal whether or not he has been outside the United Kingdom since an earlier right of appeal arose or since a requirement under Section 120 was imposed.
The precursors to Section 96 of the 2002 Act and Immigration Rule 353
"(1)This section applies where a person ("the appellant") has appealed under the Special Immigration Appeals Commission Act 1997 or this Act and that appeal ("the original appeal") has been finally determined.
(2) If the appellant serves a notice of appeal making a claim that a decision of the decision-maker was in breach of the appellant's human rights, the Secretary of State may certify that in his opinion –
a) the appellant's claim -
(i) could reasonably have been included in a statement required from him under section 74 but was not so included, or
(ii) could reasonably have been made in the original appeal but was not so made;
(b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and
(c) the appellant had no other legitimate purpose for making the claim.
(3)On the issuing of a certificate by the Secretary of State under subsection (2), the appeal so far as relating to that claim, is to be treated as finally determined.
(4) Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.
(5) The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.
(6) On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.
(7) Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.
(8) The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion-(a) one purpose of making an the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and(b) the appellant had no other legitimate purpose for making the application.
(9) No appeal may be brought under the Special Immigration Appeals Commission At 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection (8)."
(1)This section applies if -
(a) the decision on an application for leave to enter or remain in the United Kingdom is that the application be refused; and(b) the applicant, while he is in the United Kingdom, is entitled to appeal against the refusal under the Special Immigration Appeals Commission Act 1997 or this Act……
(4) The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional ground which he has or may have for wishing to enter or remain in the United Kingdom.
(5) "Decision-maker" means the Secretary of State or (as the case may be) an immigration officer.
(6) The statement must be –(a) in writing; and(b) served on the Secretary of State before the end of such period as may be prescribed.(7) A statement required under this section must –(a) if the person making it wishes to claim asylum, include a claim for asylum;…(b) if he claims that an act breached his human rights, include notice of that claim…
(1) An appeal under section 82 (1) against an immigration decision ("the new decision") in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies –
(a) that the person was notified of a right to appeal under that section against another immigration decision (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that in the opinion of the Secretary of State or the immigration officer the new decision responds to a claim or application which the person made in order to delay his removal from the United Kingdom or the removal of a member of his family, and
(c) that in the opinion of the Secretary of State or the immigration officer the person had no other legitimate purpose for making the claim or application.
(2) An appeal under section 82 (1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person –
(a) raised on an appeal under that section against another immigration decision,
(b) should have included in a statement which he was required to make under section 120 in relation to another immigration decision or application,
(c) would have been permitted or required to raise on an appeal against another immigration decision in respect of which he choose not to exercise a right of appeal…
(3) A person may not rely on any ground in an appeal under Section 82(1) if the Secretary of State or an immigration officer certifies that the ground was considered in another appeal under that section brought by that person. "
"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content
(i) had not already been considered; and
(ii) taken together with the previously considered material created a realistic prospect of success, not withstanding its rejection."
"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representation should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 [that is to say the criteria for grant of an asylum] will be satisfied. In considering whether to treat representations as a fresh claim, the Secretary of State will disregard any material which
(i) is not significant; or
(ii) is not credible; or
(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention and Protocol; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by any existing leave to entry or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."
The Claimant's case
"There being a realistic prospect of success on appeal in the Claimant's Refugee Convention and Article 3 ECHR claims, the Defendant's decision to certify the Claimant's claims and deny the Claimant a right of appeal to an immigration judge is irrational. The common law principle that provisions which restrict right of access to a court must be narrowly construed (see for example SSHD v Saleem  Imm AR 529) applies with particular force where the claim engages Article 3 ECHR. It is submitted that the exclusion of a right of appeal by certification where there is a valid Article 3 ECHR claim is incompatible with the procedural safeguards inherent in Article 3 ECHR. Pursuant to section 3 Human Rights Act 1998, section 96 of the 2002 Act can be read and given effect in a way which is compatible with Convention rights by precluding certification and the consequent loss of appeal rights where there is a valid Article 3 ECHR claim."
(a) Having found that an asylum applicant has made a fresh claim, the Secretary of State has made a finding that the claim is "significantly different" from the earlier claim and has "realistic prospects of success" on appeal to the AIT. It is incompatible with the Secretary of State's own duties under section 6 of the Human Rights Act and/or unreasonable to then deprive that person of access to a court or tribunal. ( "Submission(a)" )
(b) The Secretary of State has discretion over whether to certify a claim under section 96 of the 2002 Act. The Secretary of State has failed to have regard to that discretion in the Claimant's case but has erroneously treated the question of whether the Claimant relied on a "matter" which "could have been raised" earlier as determinative of the question of whether to certify.( "Submission (b)" )
(c) The test of whether there is a satisfactory reason under section 96(1)(c) or section 96(2)(c) requires the decision maker to consider whether the underlying claim has merit or conversely is a spurious claim brought solely to delay removal. The Secretary of State failed to have regard to underlying merit when determining that the Claimant had no satisfactory reason. ( "Submission (c)" )
The Claimant's Submissions (b) and (c):alleged errors in the decision-maker's application of the Section 96(1) and (2) procedure to the facts of his case
"Your client is seeking to rely on matters that could and should have been raised at the hearing of his appeal. Consequently it has been decided to apply a certificate to this claim. … Your client is seeking to rely on matters that could and should have been raised in the Statement of Additional Grounds that he was required to complete as part of the One Stop process. Consequently it has been decided to apply a certificate to this claim." (Emphasis added.)
"The rule [Rule 353 of the Immigration Rules] only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue, the consideration of all the decision-makers, the Secretary of State, the Adjudicator and the Court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD  AC 514 at p. 531F "(paragraph 7).
"Your client seeks to lay the blame for misleading the Immigration Service and the Adjudicator at the door of his previous representatives, Ratna & Co. The Home Office cannot intrude into the dealings between an applicant and his legal adviser beyond pointing out that, if he feels that he has been badly advised, he should make a complaint to the Law Society. Your client states that his original statement was not read back to him until the day before his appeal hearing at which time he found it to be full of errors. Your client attended the appeal hearing and had a full opportunity to make any further statements, amendments or clarifications he wished. You are referred to paragraph 7 of the Adjudicator's Determination:
"With the assistance of an interpreter, the appellant gave evidence to me. He dealt with the preparation of his statement and corrected some dates in that statement as noted on the copy on file. Subject to those amendments, he adopted the statement as his own evidence-in-chief".
If we were to accept your client's new statement as the unvarnished truth it would mean that he had knowingly lied to the Home Office and the Adjudicator. Your client was represented at appeal by Counsel who could have warned him of the serious consequences of this. The Home Office takes the view that your client is responsible for his choice of legal adviser and for ensuring that the claim he advances is the truth. Your client admits at paragraph 5 of his statement that he had not told the truth during the processing of his asylum application or subsequently at appeal. In light of his behaviour the Home Office is not prepared to place any weight at all on further uncorroborated claims. The enclosures with your letter of 19 February 2004 have been examined but they in no way support your client's latest claims ….".
"If we were to accept your client's statement as the unvarnished truth it would mean that he had knowingly lied to the Home Office and Adjudicator. Your client was represented at appeal by Counsel who could have warned him of the serious consequences of this."
I find the latter observation puzzling. It is hard to see the relevance of the fact that the Claimant's Counsel could have warned him of the serious consequences of lying. There is no evidence that the Claimant's Counsel did warn him of the serious consequences of lying or even that he had any reason to believe such a warning was necessary. It was not part of the Claimant's case as put forward through his second solicitors that his original counsel had been party to the advice allegedly given by the Claimant's first solicitors or that he had been privy to the fact that, as the Claimant now submits, the version of events in the original Statement of Evidence Form was not truthful.
"If the Secretary of State is satisfied that the appellant's claim could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the UK, then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate.
He has a discretion in so doing and his discretion is governed by administrative law principles. It seems to me that the Secretary of State must take into account two factors: first, the scheme of this part of the Act, which is intended to produce finality resulting from a single appeal; and secondly, by virtue of section 6 of the Human Rights Act 1988,the human rights of the claimant. Factors which it will commonly be appropriate to take into account are likely to be the strength or weakness of any new claim and the reason why such a claim was not advanced in the original appeal."(paragraph 11).
Submission (a): it is incompatible with the Secretary of State's duties under Section 6 of the Human Rights Act 1988 and/or unreasonable ever to certify a fresh asylum or human rights claim.
(i) The Claimant's Submissions
"It is inconsistent with the prohibition on refoulement under the Geneva Convention Relating To The Status of Refugees 1951 ("the Refugee Convention") and with the absolute prohibition on torture contained in Article 3 ECHR to deprive a person who has a current disputed and arguable asylum and Article 3 ECHR claim of a right of appeal against an adverse immigration decision before removal to the country of feared persecution."
"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if – (a) as the result of one of more provisions of primary legislation, the authority could not have acted differently;….."
"The obligation of the United Kingdom under the [refugee] Convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of return. A refugee (as defined) has a right not to be returned to such a country and a further right not to be returned pending a decision as to whether he is a refugee (as defined) or not"
"Parliament must have intended that the strengthened reference to the Refugee Convention in primary legislation would be treated by the courts as an incorporation of the Refugee Convention into domestic law…in my view it is clear that the Refugee Convention has been incorporated into our domestic law"
However see also R v Asfaw  UKHL 31 where Lord Bingham of Cornhill stated:
"The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department ex parte Sivakumaran  AC 958, 990G; Lord Steyn in R (Roma Rights Centre) v Immigration Officer at Prague Airport (United nations high commissioner for refugees intervening)  UKHL 55,  2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and para 328 of Statement of Changes in Immigration Rules (HC395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While therefore one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation."
"…the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. …the prohibition provided by Article 3 against ill treatment is equally absolute in expulsion cases. Thus whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion (see the above mentioned Vilvarajah and Others judgment page 34 para 103). In these circumstances the activities of the individual in question however undesirable or dangerous cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by article 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see para 61 above)."
"Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However this course of action entitled her neither to suspend its implementation nor to have an examination of the merits of her claim to be at risk…in the court's opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill treatment alleged materialised and the importance which it attached to Article 3 the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned".
"It is obviously important that there is an in country appeal in asylum and human rights claims at least engaging Article 3 ECHR. A claimant with a current well-founded fear of persecution may face irreparable harm on return if his or her claim is dismissed and the claim can only be exercised from abroad…Where there is a current and disputed asylum or human rights claim it would make every sense for the appeal by which the outcome is disputed to have suspensive effect and enable it to be brought before removal in order to give practical effect to the non-refoulement principle reflected in article 33(1) Refugee Convention."
"It would in my judgment undermine the beneficial object of the Refugee Convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh "claim for asylum (781F)."
"It cannot have been the intention of Parliament that an applicant for asylum should be denied the right of appeal simply because he had previously made an unsuccessful application for leave to enter on another ground. It is inherently unlikely above all in asylum cases that Parliament should have intended to emasculate the right of appeal in this way."
It was accepted by Ms Dubinsky that Dyson J went on emphasise that this entitlement to a further appealable immigration decision would only arise where the new representations were different from the previous representations and amounted to a fresh claim:
"Parliament cannot have intended that immigration officers should be required to issue successive refusals of leave to enter each attracting a right of appeal on the same claim."
It was also accepted by Ms Dubinsky that in Etame Blake J drew a distinction between fresh representations which do not under the Refugee Convention or Article 3 ECHR require a suspensive in-country right of appeal on the one hand and fresh claims which do require a suspensive in-country right of appeal on the other:
"…only a first claim to asylum or a fresh claim will result in an in-country appeal under section 92(4)…where a claim for protection has been considered and rejected and the rejection upheld on appeal there is no violation of the principle of non-refoulement in removing the person concerned. Where a repeat claim is made that is not a fresh claim for protection there is accordingly no need to grant a suspensive right of appeal" (paras 56-57).
"I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to protection of the Convention and this country is not entitled to disregard the provisions of the Convention by which it is bound if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered."
Section 3 provides:
'(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.'
"The interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, per Lord Cooke of Thorndon, at p 373f ; and my judgment, at p 366b .The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that "in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility" and the Home Secretary said "We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention": Hansard (HL Debates), 5 February 1998, col 840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading)..….. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 132a -b , per Lord Hoffmann. (Emphasis added)
'On this the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative. Since section 3 relates to the "interpretation" of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent.
From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation.
Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed.' [Emphasis added]
Lord Steyn stated at paragraphs 41 and 44:
"Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved."
"It is necessary to state what section 3(1), and in particular the word "possible", does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word "possible" in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR. Thirdly, the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation."
In his dissenting judgment, at paragraph 67, Lord Millett similarly stated:
"This does not mean that it is necessary to identify an ambiguity or absurdity in the statute (in the sense of being open to more than one interpretation) before giving it an abnormal meaning in order to bring it into conformity with a Convention right: see R v A (No 2)  1 AC 45, 67, 87, per Lord Steyn and Lord Hope of Craighead. I respectfully agree with my noble and learned friend, Lord Nicholls of Birkenhead, that even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point. The court must "strive to find a possible interpretation compatible with Convention rights" (emphasis added): R v A  1 AC 45, 67, para 44, per Lord Steyn. But it is not entitled to give it an impossible one, however much it would wish to do so." [emphasis added]
And at paragraphs 119 and 121, Lord Rodger of Earlsferry stated:
"…where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words."
"For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc  AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd  1 AC 546 suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute" [Emphasis added]
(i) It is consistent with the scheme and essential principles of the legislation. Nothing in this approach renders Section.96 otiose, since certification under that provision applies to a wide range of situations in which a person will have a repeat appealable decision but no fresh asylum or Article 3 ECHR claim. Further this approach is consistent with an overall legislative scheme. The appeals structure is one which, under Section 92 (4)and as discussed in Etame, preserves in-country appeal rights for those who have made arguable initial asylum or Article 3 ECHR claims (i.e. not certified as 'clearly unfounded' under Section 94 ); and which, as discussed in Etame, also preserves in-country appeal rights for those who have made fresh asylum or Article 3 ECHR representations which, having realistic prospects of success and not having been made earlier, meet the fresh claims test.
(ii) It is 'intellectually defensible".
These interpretations being 'possible', Section 3 of the Human Rights Act requires that the legislation be given this interpretation.
"Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review…Nor am I persuaded that the House of Lords' decision in Al-Mehdawi precludes this Court having regard to the wider interests of justice here, not least given that this is an asylum case rather than a student leave case as was Al-Mehdawi."
"The result in Al Mehdawi was that a foreign student whose leave to remain had expired forfeited his entitlement to an appeal hearing because of his solicitors' errors. Not only did the case not concern the possibility of returning somebody to persecution, torture or death; it left to the Home Secretary, if he thought the application had merit, a power to invite an adjudicator to hear the applicant's evidence and report whether in his opinion it would have made a difference to the decision: see p.901. Although Lord Bridge's opinion is carefully framed in terms of principle and not of pragmatism, the case before the House was far distant from the kind of case we are concerned with. These cases do not only involve asylum–seekers who are either making a first appeal or have lost their first appeal and are making a second endeavour to establish their claim: they include asylum seekers who have won their initial appeal before an immigration judge and are seeking to hold the decision against the Home Secretary's appeal. For some of these, the exercise of the right to be heard may literally be a matter of life and death; for all of them save the bogus (and even they have to be identified by a judicially made decision) it is in a different league from the loss of a student's right to remain here. The remedial discretion which afforded Mr Al Mehdawi a fallback is absent from asylum law."
"If fresh evidence which was clearly available at the time of an appeal is put before the Secretary of State and he accepts that it is both credible and does show that there is a real risk that if returned the individual will suffer a breach of Article 3 of his Human Rights, it would then be wrong for the Secretary of State to disregard it purely because it was available at the relevant time."
In taking away appeal rights from a person who has an arguable claim that he may face irreparable harm - torture or death - on return to his home country, the Secretary of State has acted Wednesbury unreasonably.
(ii)The Secretary of State's Submissions
"35. If any representations are made after one appeal has been determined the Secretary of State will consider them in order to decide whether they amount to a fresh claim. If he concludes that they do, but his decision on that fresh claim is not in favour of the applicant, that is a decision on an application which would normally give rise to the possibility of an appeal and appeal notices will be sent out to the applicant. Conversely if he decides that the representations do not amount to a fresh claim the applicant can only obtain relief by seeking judicial review
36. Where the Secretary of State makes a decision which does give rise to the possibility of an appeal he can then contemplate certification pursuant to section 73(8)[of the 1999Act] "
Balamurali , R(Borak) v SSHD  EWCA Civ 110 and R ex parte Khan v Secretary of State for the Home Department  EWHC 600 (Admin) are all cases where the Section 96 power (or equivalent) has been considered by the Courts and no objection in principle identified to its existence or exercise.
"…the acid test must always be whether comparing the new claim with that earlier rejection and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim, despite the unfavourable conclusion reached on the earlier claim" (emphasis added)
"…we would not it as showing that Ladd v Marshall principles have `no place' in public law. Rather it shows that they remain the starting point, but there is a discretion to depart from them in exceptional circumstances".(paragraph 82)
In Gungor Collins J observed at :
"The effect of all that, as I see it, is that, as the court said in E, Ladd v Marshall is the starting point and availability is a factor to be taken into account and certainly will be given considerable weight because it is important that there should be finality. It seems to me that in cases of availability the court should look with care to see whether in reality the evidence could have affected the result and if ignored would mean that there was a risk that human rights would be breached."
The Courts in Haile, E and Gungor were therefore not in any way rejecting the relevance of previous availability of material in dealing with further representations and potential new claims, but articulating the point that there should not be an absolute rule of exclusion of such material in making decisions in this context.
Conclusions on Submission (a)
"…if fresh evidence which was clearly available at the time of an appeal is put before the Secretary of State and he accepts that it is both credible and does show that there is a real risk that if returned the individual will suffer a breach of Article 3 of his human rights it would then be wrong for the Secretary of State to disregard it purely because it was available at the relevant time." (para 17).
That was, as Collins J said, an extreme example. It is also materially different from the present case in that the Secretary of State has not accepted that the fresh evidence is credible or that it shows that there is a real risk that the Claimant will suffer a breach of Article 3 if returned to Sri Lanka. He has found the evidence to be incredible and has only found that there is a realistic prospect that the claimant might succeed in persuading the IAT to take a different view. Collins J's comment was also made in the context of construing an immigration rule (the old Rule 346) rather than primary legislation with which I am concerned in this case. However the dictum well illustrates why it is that the courts have been astute to avoid where possible the application of strict Ladd v Marshall principles in the context of asylum and human rights claims. As Collins J said earlier in the same paragraph, referring to the head note in The Queen on the application of Haile v Immigration Appeal Tribunal  INLR 283:
"That approach to Ladd v Marshall in the context of asylum cases recognises that there is a conflict between the need for finality and the need to ensure that there is the sufficient anxious scrutiny to ensure no-one is returned to persecution. In the human rights context it has added importance because both the court and the Secretary of State as public bodies have an obligation to ensure that they do not breach any human rights in a decision that they make and accordingly there is a need to be satisfied that the decision that is in fact made is not one which can be said to fall into that category."
"There is no doubt that the court does have the power to and indeed should depart from the strict principles in Ladd v Marshall indeed any strict principles if the interests of justice so require."
He then referred to a passage in the judgment of Carnwath LJ in E v Secretary of State for the Home Department 2004 QB 1044 at 1076 para 82 in which, referring to a dictum of Sir John Donaldson MR in R v Secretary of State for the Home Department ex parte Momin Ali  1 WLR 663 at 673 he stated:
"However we would not regard it as showing that Ladd v Marshall principles have "no place" in public law. Rather it shows that they remain the starting point but there is a discretion to depart from them in exceptional circumstances"
Collins J then concluded:
"The effect of that as I see it is that, as the court said in E, Ladd v Marshall is the stating point and availability is a factor to be taken into account and certainly will be given considerable weight because it is important that there should be finality. It seems to me that in cases of availability the court should look with care to see whether in reality the evidence could have affected the result and if ignored would mean that there was a risk that human rights would be breached."
"It is of course most unfortunate that this mistake was not uncovered until it was when and plainly it could and should have been. Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home department exparte Ali 1984 1WLR 663,673: "the decision on Ladd v Marshall 1954 1WLR1489 has no such place in that context", although he then added: (c) "however I think that the principles that underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the court to depart from then if the wider interests of justice so require" (para 25).
"We would respectfully accept the statement of Sir John Donaldson MR [in Ali] as accurately reflecting the law applicable in a case of this kind (whether it takes the form of a direct appeal from the IAT to the Court of Appeal or comes by way of judicial review of the IAT's refusal of the leave to appeal). However we would not regard it as showing that Ladd v Marshall principles have "no place" in public law. Rather it shows that they remain the starting point but there is a discretion to depart from then in exceptional circumstances" (para 82)
"For reasons which I have given they forfeit what our constitutional law (consonantly now with Article 6 of the European Convention of Human Rights) regards as a fundamental right, the right to be heard on an issue of radical importance to the individual, on grounds which are so widely and rigidly prescribed that they shut out parties who have done nothing wrong but whose lives and safety may in consequence be put at risk. In so doing they sacrifice fairness to speed and deny the Tribunal any power to hold these two desiderata in balance." (para 49)
As appears from this review, these authorities were concerned with the admissibility of evidence on appeals to the Court of Appeal or on judicial review from the IAT or with the construction of Rules. In none of them did the court hold that a statute which on its face explicitly precluded a right of appeal in specified circumstances did not, by reason of a principle requiring departure from strict Ladd v Marshall principles, apply to an asylum or human rights claim.
"Part IV of the Act deals with the various aspects of appeals and, as it seems to me, it has three main objectives –
(1) to grant specific rights of appeal, for example to those who claim that in the context of immigration their human rights have been infringed (section 65) or who have been refused asylum (section 69)
(2) to ensure that if an appeal is brought it will be comprehensive and cover every available ground for seeking relief (section 74)
(3) to prevent abuse of the appellate system – see for example section 73, which only operates where one appeal (the original appeal) has been finally determined."
"In judicial review proceedings the Court may rule the exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality or procedural impropriety. In an extradition case the test of "irrationality" on the basis of the so-called "Wednesbury principles" would be that no reasonable Secretary of State could have made an order for surrender in the circumstances. According to the United Kingdom government, a Court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. Although the Convention is not considered to be part of United Kingdom law, the Court is satisfied that the English Courts can review the reasonableness of an extradition decision in the light of the kind of factors relied on by Mr Soering before the Convention institutions in the context of Article 3 ". (paragraph 21).
"The court does not consider that there are any material differences between the present case and the Soering case which should lead it to reach a different conclusion in this respect." (para 124).
It is of note that in the context of Article 3, the court observed that Contracting States have the right as a matter of well established international law and subject to their treaty obligations including Article 3 to control the entry residence and expulsion of aliens. As to Article 13, the Court held:
"Article 13 guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (ibid). Its effect is thus to require the provision of a domestic remedy allowing the competent "national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see inter alia Soering para 120). However, Article 13 does not go so far as to require any particular form of remedy, Contracting States being afforded a margin of discretion in conforming to their obligations under this provision." (para 122).
"…all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the Immigration Officer or the Secretary of State…Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny" (945,952).
The Court concluded:
"Indeed the [English] courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant's life or liberty may be at risk. Moreover the practice is that an asylum seeker will not be removed from the UK until proceedings are complete once he has obtained leave to apply for judicial review. …While it is true that there are limitations to the powers of the courts in judicial review proceedings…the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13. The applicants thus had available to them an effective remedy in relation to their complaint under Article 3." (paras 125, 126 and 127).
"Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the Court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3" (paragraph 155).
"In the present case neither the advisory panel nor the Courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security consideration. On the contrary, the court's approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chahal against the danger to national security (see paragraph 41 above). It follows from the above considerations that these cannot be considered effective remedies in respect of Mr Chahal's Article 3 complaint for the purposes of Article 13 of the Convention." (para 153).
"It must be born in mind that these cases concerned complaints under Articles 8 and 10 of the Convention and that the examination required the Court to have regard to the national security claims which had been advanced by the Government. The requirement of a remedy which is "as effective as can be" is not appropriate in respect of a complaint that a person's deportation will expose him or her to a real risk of treatment in breach of Article 3, where the issues concerning national security are immaterial. In such cases given the irreversible nature of the harm that might occur if the risk of ill treatment materialised and the importance the court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State. Such scrutiny need not be provided by a judicial authority but if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective. In the present case neither the advisory panel nor the Courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security consideration. On the contrary, the court's approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chaahal against a danger to national security (see paragraph 41 above). It follows from the above consideration that these cannot be considered effective remedies in respect of Mr Chahal's Article 3 complaint for the purposes of Article 13 of the Convention. Moreover the court notes that in the proceedings before the advisory panel the applicant was not entitled inter alia to legal representation, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraph 30, 32 and 60 above). In these circumstances the advisory panel could not be considered to offer sufficient procedural safeguards for the purpose of Article 13. Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3 (see para 150, 151, 152, 153, 153, 155)"
"For all these reasons I do not accept the Tribunal's conclusion that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to the protection of the Convention and this country is not entitled to disregard provisions of the Convention by which it is bound, if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered." (page 17)
"Is it for the Court to assume upon such a challenge the primary fact-finding role? Must we, in other words, decide for ourselves whether on all the material before us we for our part regard the applicant (and those in like case) as subject to the risk in question? Or are we exercising what still remains essentially a supervisory jurisdiction, heightened though our responsibilities would undoubtedly be in the context of so fundamental a human right as that at stake here?"
"Mr David Pannick submitted that the Court should adopt the following approach to the issue of irrationality: 'The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision in unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above'. This submission is in my judgment an accurate distillation of the principles laid down by the House of Lords in R v Secretary of State for the Home Department ex parte Bugdaycay  AC 514 and R v Secretary of State for the Home Department ex parte Briand  1 AC 696. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to "do right to all manner of people"…" (554,556).
"It is clear that the court's role even in a case involving fundamental human rights remains essentially supervisory. It must, of course, as Lord Bridge observed in ex parte Bugdaycay review the impugned decision (certainly in an Article 3 case) with "the most anxious scrutiny". But it must not adopt the role of primary decision-maker."
The Court of Appeal rejected the submission that the Smith approach was inadequate as a means of providing an effective remedy and thus satisfying the UK's Article 13 obligation in an Article 3 case. Simon Brown LJ, in a judgment with which the other two members of the court agreed, having reviewed Soering, Vilvarajah and Chahal cited the following passage from the decision of the European Court of Human Rights in D v UK (1997) 24 EHRR 423:
"70. In its Vilvarajah and others judgment and its Soering judgment the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English Courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.
72. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal v United Kingdom judgment. However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify the expulsion of Mr Chaahal. No such considerations arise in the case at issue."
The decision in D v UK was thus a further confirmation by the European Court of Human Rights of its conclusion that the availability of judicial review on grounds of irrationality satisfies the requirements of Article 13 in an Article 3 case. It also explicitly confirmed that the decision in Chahal turned on the narrow point that the domestic courts in that case were precluded from reviewing the factual basis underlying the Secretary of State's decision and that provided the domestic court has the power to review the factual basis underlying the decision of the Secretary of State there is no breach of Article 13 by reason of a failure to conduct a independent scrutiny of the facts.
"138…the present applications can be contrasted with the cases of Soering and Vilvarajah cited above. In those cases the Court found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Court's own approach under Article 3 of the Convention."
"Mr Nicol's argument runs essentially as follows. "the Court's own approach under Article 3 of the Convention" (see concluding words of paragraph 138) is, he says, plain. It is that set out in paragraph 108 of its judgment in Vilvarajah and in paragraphs 95 and 97 of its judgment in Chahal: the ECHR will rigorously examine all the material before it and make its own assessment on risk as at the date of the hearing that, therefore, must be the approach of the domestic court too: only thus will it have "coincided with" the ECHR's approach (as paragraph 138 states that it does) and so explain why the court regards judicial review as an "effective remedy" in Article 3 cases (save of course, in Chahal where the national security aspect of the case precluded the domestic courts from forming their own view upon it), but not in a case like Smith and Grady itself."
Plausible though this argument appears, in my judgment it reads too much into paragraph 138. As the cited passages from the court's judgments show, the ECHR know full well the nature of the judicial review process and cannot be thought to suppose that the reviewing court ever adopts the role of primary fact finder. It is one thing to say that an administrative decision to deport will be rigorously examined and subjected to the most anxious scrutiny: quite another to say that the court will form its own independent view of the facts which will then necessarily prevail over whatever view has been formed by the Secretary of State.
Where therefore the court in Soering, Vilvarajah and D speak of the domestic court in judicial review having the power to quash a decision "where it was established that there was a serious risk of inhuman or degrading treatment" that can only mean "where it was established that on any reasonable review of the facts there was a serious risk of inhuman or degrading treatment" i.e. where it was established that no rational Secretary of State could have reached a different conclusion upon the material in the case.
.…I therefore conclude that the domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State's conclusion on facts. In the first place, the human right involved here – the right not to be exposed to a real risk to a Article 3 ill-treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly the court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the "discretionary area of judgment" – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v DPP ex parte Kebilene  3 WLR 972 at 993 – 994 is a decidedly narrow one.
"40. The Court is not persuaded that the authorities of the respondent State conducted any meaningful assessment of the applicant's claim, including its arguability. It would appear that the applicant's failure to comply with the five day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran (see paragraph 16 above). In the Court's opinion, the automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNCHR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Ankara Administrative Court, on her application for judicial review, limited itself to the issue of the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin.
42. Having regard to the above considerations the Court finds it substantiated that there is a real risk of the applicant being subjected to treatment contrary to Article 3 if she would be returned to Iran. …
48. The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy and allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see the Chahal judgment cited above).
49. The Court reiterates that there was no assessment made by the domestic authorities of the applicant's claim to be at risk if removed to Iran. The refusal to consider her asylum request for non-respect of procedural requirements could not be taken on appeal. Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However this course of action entitled her neither to suspend its implementation nor to have an examination of the merits of her claim to be at risk. The Ankara Administrative Court considered that the applicant's deportation was fully in line with domestic law requirements. It would appear that, having reached that conclusion, the court felt it unnecessary to address the substance of the applicant's complaint, even though it was arguable on the merits in view of the UNCHR's decision to recognise her as a refugee within the meaning of the Geneva Convention.
50. In the Court's opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attached to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure inpugned. Since the Ankara Administrative Court failed in the circumstances to provide any of these safeguards, the Court is led to conclude that the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13. Accordingly there has been a violation of Article 13 of the Convention"
It is apparent from the foregoing that there was no independent and rigorous scrutiny of the Claimant's claim that deportation would expose her to a risk of persecution by any domestic authority. The role of the Ankara Administrative Court was confined to considering whether the late filing of her asylum claim complied with the technical requirements of the Asylum Regulation 1994. Thus although the application to the Ankara Administrative Court was described as "judicial review proceedings", those proceedings were of a qualitatively different nature from judicial review proceedings in this country, in which the substance of a decision that there is no risk of persecution can be challenged, albeit applying Wednesbury principles. In Jabari Article 13 was breached because the competent national authority neither dealt with the substance of the claimant's Article 13 complaint nor was able to grant appropriate relief. In my view there is no warrant for suggesting that the Court was laying down a general proposition that the availability of judicial review in the sense in which it is available in the United Kingdom does not constitute an effective remedy under Article 13, still less that the reason it does not do so is because the English Administrative Court is not a primary fact-finding tribunal. Such a finding would be wholly out of line with the other decisions of the European Court of Human Rights referred to above. Jabari was an extreme case in which there had been no assessment by any organ of the national authority of the substance of the claimant's complaint, merely the mechanical application of a time limit preventing any further scrutiny of the claim. The conclusion that that breached Article 13 does not in my view assist the Claimant in this case.
"Subject to any requirement of the rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."
"In my judgment, the right created by section 20 of the Act is a basic or fundamental right, akin to the right of access to courts of law. If it is correct that the section 20 right is a fundamental or basic right akin to the right of unimpeded access to a court, then there is this consequence, that infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament … " (449D-E)
Roch LJ concluded that Rule 42(1)(a) was not expressly authorised by the 1971 Act. It went beyond regulating rights of appeal to the Tribunal in that it could deny a party her chance to appeal where the party had, through no fault of her own, failed to comply with the five-day rule.
"However I would confine that conclusion to the particular context in which it arises in this case: that is, to the notification of adjudicators' determinations. It is the combination of the tight time limit, with no discretion to extend whatever the circumstances, with the irrebuttable presumption of receipt whatever the circumstances, which has the effect which Parliament cannot have intended to authorise."
"A submission made on behalf of the Secretary of State is that Rule 42(1)(a) has to be considered in the context of all the procedures available to the asylum seeker. Because there are other remedies open to an asylum seeker, Rule 42(1)(a) is a permissible way to secure the timely and effective disposal of appeals. The alternative remedies referred to [include] … the remedy of judicial review of the decisions of the Secretary of State or a special adjudicator where, these being asylum cases, the courts give anxious consideration to applications for judicial review. I accept Mr Nicol's submission that the existence of these alternative remedies does not change the nature of Rule 42(1)(a). These alternative remedies are not as effective as an appeal to the tribunal.… Although an asylum seeker can apply for judicial review of the decisions of the Secretary of State or of a special adjudicator, the courts will only quash a decision that is flawed on relatively narrow grounds." (451A-C, E)
"Mr Burnett also argues that the effect is not so drastic because of the alternative remedies available to someone such as Mrs Saleem.… She can ask the Secretary of State to exercise his power … to refer to an adjudicator any matter relating to the case which was not before the adjudicator or tribunal. She can seek a review of the Secretary of State's refusal to either of these things. This argument did not impress Hooper J. The intention of the legislature in granting asylum seekers rights of appeal to the immigration appellate authorities was that there should be a binding adjudication of the merits of their case by an independent adjudicator who was able to hear the oral evidence of the appellant. Credibility is a vital issue in many asylum appeals (see R v Immigration Appeal Tribunal ex parte S  Imm A R 252, 261), yet those making decisions on behalf of the Secretary of State are not those who interview the asylum seekers. The Secretary of State will only consider a fresh application if it raises new material not available before. A reference under section 21 leaves the decision to him. Judicial review can challenge only the legality and not the merits." (458H-459C)
"In my judgment although section 73 could and should have been much better expressed its meaning and purpose can be understood if sufficient weight is given to its position in the statute and to the procedure in relation to which it is designed to operate. Part IV of the Act deals with the various aspects of appeals and, as it seems to me, it has three main objectives –
(1) to grant specific rights of appeal, for example to those who claim that in the context of immigration their human rights have been infringed (section 65) or who have been refused asylum (section 69)
(2) to ensure that if an appeal is brought it will be comprehensive and cover every available ground for seeking relief (section 74)
(3) to prevent abuse of the appellate system – see for example section 73, which only operates where one appeal (the original appeal) has been finally determined."(paragraph 34)
" … but the Secretary of State can examine the notice of appeal to get rid of grounds considered in the original appeal – see section 73 (5) – and in relation to any claim alleging breach of human rights he can consider the possibility of certification pursuant to section 73 (2). In that sub-section if he forms an opinion adverse to the appellant in relation to paragraphs (a) and (b) he will again consider whether one purpose was to delay removal and whether the appellant had any other legitimate purpose, and the process will be the same as in relation to sub-section (8) save that because of the existence of paragraph (a) the Secretary of State will have already satisfied himself that what is now being said could reasonably have been said at two specific earlier stages.
It follows that in general I accept the submissions made to us by Mr Wilken and adopt an interpretation which is similar to but not quite identical with that adopted by Mitting J in Balamurali. On the facts of that case it seems to me plain that the Secretary of State was entitled to certify as he did in relation to Article 3 under section 73 (5) and in relation to Article 8 under section 73 (2), so the appeal of Balamurali should in my view be dismissed." (paragraphs 37 and 38)(emphasis added)
"it follows that in each of the cases with which we are concerned before the Secretary of State even began to consider whether or not to issue the certificate now under challenge he must have concluded that the claim advanced in the fresh representations was sufficiently different from the earlier claim to give rise to a realistic prospect of the Claimant being able to satisfy the Secretary of State that refusing his application would breach the Claimant's human rights within the meaning of section 65 of the 1999 Act, or (in an asylum case) that his removal in consequence of the refusal would be contrary to the Geneva Convention." (paragraph 16).
"I would hold – but without deciding the limits of section 96 (2) (b) if properly understood – that the judge did not err in law in deciding as he did on the basis of the case as it was put before him." (paragraph 32)
"Further the defendant's construction ensures that there is a right of appeal available to challenge the decision although one that can only be exercised from abroad. This is less draconian than a section 96 certificate that would remove all rights of appeal…" (paragraph 58)
Since the context of Blake J's remarks was a discussion of asylum and human rights claims as defined in Section 113 of the 2002 Act, Mr Strachan was in my view entitled to submit that it is to be inferred that Blake J's comment was made on the assumption that Section 96 (1) and (2) and the power to certify thereunder apply to human rights and asylum claims. However, as in Borak, and Khan, the point was not argued before him. Mr Strachan also relied on another passage from Blake J's judgment where he said, in paragraph 26: "…..There are other mechanisms for certification of appeals notably under s.96 where a right of appeal at all can be removed if the matter could have been raised in a previous appeal and there is no satisfactory explanation why it is not.", although it is not entirely clear if this was merely part of his summary of counsel's argument.
Ground one: Delay in the Secretary of State's failure to review the section 96 certificate in light of the additional evidence submitted by the Claimant in June and July 2006 is unreasonable.
"It is to be noted that those Claimant's whose initial claims have been refused and whose appeals have been dismissed are seeking to persuade the Defendant that they are making a fresh claim. They have that hurdle to surmount before any consideration is to be given as to whether they are indeed refugees. That puts them into a different position from initial applicants and Mr Gill was constrained to accept that it would not be irrational to treat them differently and to prioritise initial claims. Any judge sitting in the Administrative Court cannot fail to be aware that many allegedly fresh claims are brought when removal is at last attempted and that the majority of such claims are unarguable, being attempts to delay a justifiable removal. But some, albeit a small minority, are genuine. Nevertheless, the number of largely unmeritorious claims places a burden on the Home Office since each has to be considered on its merits and a decision made whether it should be regarded as a fresh claim and, if so, whether it should be rejected or allowed. Having regard to the numbers, some delay is unsurprising. Furthermore, cases in which claims have succeeded because of delay have on the whole involved delay in deciding initial claims. While nothing I say should be construed as approval of the delays in the present cases, I am not prepared to find that they are (with the possible exception of that in H's case with which I shall deal with specifically) so excessive as to be for that reason alone unlawful" (para 25).
"In R (Noorkoiv) v Secretary of State for the Home Department  4 All ER 575 the Court of Appeal was concerned with an Article 5 (4) claim and the requirement for a speedy determination of the lawfulness of detention. In such a case lack of resources could not be relied on by the defendant. Buxton LJ referred to counsel's recognition that she could not dispute that the Strasberg Court would not regard the failure to provide the necessary resources as a defence to a claim that there was a breach of Article 5 (4) and proceeded to reject her submission that the situation was different before the domestic courts. …Article 5 (4) imposed, as Buxton LJ put it at paragraph 25, "a more intense obligation than that entailed in the need for a prompt trial of people who are not in custody."
The distinction being drawn was with the requirement under Article 6 (1) of a fair trial within a reasonable time. In Procurator Fiscal v Watson  4 All ER, the Privy Council had considered the "reasonable time requirement". It was said that the threshold of proving a breach of the reasonable time requirement was a high one, not easily crossed and unless the period of delay was one which, on its face and without more, gave grounds for real concern it was almost certainly unnecessary to go further. This was because the concern in such a case was that there were infringements of basic human rights and not departures from the ideal: see per Lord Bingham at paragraph 52  4 All ER 1 at P21A-D. While if there was delay which gave grounds for real concern, general lack of proper resources could not be relied on as an excuse, the individual circumstances must be taken into account. It follows in my view that a system of applying resources which is not unreasonable and which is applied fairly and consistently can be relied on to show that delays are not to be regarded as unreasonable or unlawful.
As was emphasised by Lord Bingham the question was whether delay produced a breach of Article 6 (1). Here the question is whether the delay is unlawful. It can only be regarded as unlawful if it fails the Wednesbury test and is shown to result from actions or inactions which can be regarded as irrational. Accordingly, I do not think that the approach should be different from that indicated as appropriate in considering an alleged breach of the reasonable time requirement in Article 6 (1). What may be regarded as undesirable or a failure to reach the best standards is not unlawful. Resources can be taken into account in considering whether a decision has been made within a reasonable time, but (assuming the threshold has been crossed) the Defendant must produce some material to show that the manner in which he has decided to deal with the relevant claims and the resources put into the exercise are reasonable. That does not mean that the court should determine for itself whether a different and perhaps better approach might have existed. That is not the court's function. But the court can and must consider whether what has produced the delay has resulted from a rational system. If unacceptable delays have resulted, they cannot be excused by a claim that sufficient resources were not available. But in deciding whether the delays are unacceptable, the court must recognise that resources are not infinite and that it is for the defendant and not for the court to determine how those resources should be applied to fund the various matters for which he is responsible. (paragraphs 9-11).(emphasis added).
Collins J then considered the evidence in relation to the Secretary of State's system for prioritising applications and claims. :
"The system devised to deal with the situation must recognise that there will be delays which are thoroughly undesirable. It must also be appreciated that there is a continuing detriment in that individuals whose allegedly fresh claims have not been dealt with are in the limbo referred to in the 1998 White Paper. If they are genuine refugees, they are entitled to the rights conferred by the Convention and, if they are not, their position should be known within a reasonable time. It is also important that the system caters for the possibility of advancing consideration of applications if exceptional or compassionate circumstances are shown. The question is whether the manner in which the backlog is being dealt with is in all the circumstances reasonable and fair overall. It is not for the court to require greater resources to be put into the exercise, no doubt to the detriment of other matters which must be funded by the government, unless persuaded that the delays are so excessive as to be unreasonable and so unlawful." (paragraph 21).
"It follows from this judgment that claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the Claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the Court." (paragraph 30).