Zenovics, R (on the application of) v Secretary of State for the Home Department [2002] EWCA Civ 273 (7th March, 2002)

Neutral Citation Number: [2002] EWCA Civ 273 Case No: C/01/1433 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE IMMIGRATION APPEALS TRIBUNAL Royal Courts of Justice Strand, London, WC2A 2LL 7th March 2002 B e f o r e : LORD JUSTICE SCHIEMANN LORD JUSTICE MAY and LORD JUSTICE JONATHAN PARKER ____________________ Between: THE QUEEN ON THE APPLICATION OF ALEKSEJS ZENOVICS Appellant - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Manjit S GILL Q. C. and Emeka PIPI (instructed by Ned & Chucks) for the Appellant Andrew HUNTER (instructed by Treasury Solicitor) for the Respondent ____________________ HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________ Crown Copyright © Lord Justice Schiemann: This is the judgment of the Court. This appeal by Mr Zenovics from the Immigration Appeal Tribunal arises out of badly drafted legislation. The Tribunal held with manifest regret that the effect of the legislation was to deprive it of jurisdiction to hear his appeal. It regarded this as producing an unfair result. It suggested that future unfairness could be avoided if the Home Secretary adopted a certain policy and applied it. The Home Secretary has we understand done this. However that does not help Mr Zenovics. He claimed he was a refugee as defined in the Refugee Convention and sought asylum here. He also claimed that if he were returned to Latvia this would involve a breach of the Human Rights Convention. On 2 October 2000 a number of things happened. (i) Most of the Human Rights Act 1998 and the human rights provisions of the Immigration and Asylum Act 1999 came into force. (ii) The Home Secretary rejected his claim under the Refugee Convention. (iii) The Home Secretary certified that in his opinion, the immigrant’s claim under the Refugee Convention was one to which subparagraph (4) of paragraph 9 of the 4th Schedule to the Immigration and Asylum Act 1999 applied and subparagraph (7) of that paragraph did not apply. (iv) The Home Secretary rejected the claim under the Human Rights Convention. (v) An Immigration Officer issued directions for Mr Zenovics’ removal to Latvia because he was an illegal entrant. (vi) The Refugee Legal Centre signed a notice of appeal on behalf of Mr Zenovics claiming that his removal would involve a breach of the Refugee Convention and the Human Rights Convention. The appeal came before an adjudicator. He did not accept that the immigrant was a refugee and held that the Home Secretary was right to certify the claim under the Refugee Convention. So that was the end of the road so far as Mr Zenovics’ claim to be a refugee was concerned. He accepts that before us. The immigrant’s claim under the Human Rights Convention was also dismissed by the adjudicator. The immigrant wished to appeal further to the Tribunal. The Home Secretary had not issued a certificate in relation to that claim and so the adjudicator had not been required to decide whether the issue of such a certificate was justified. Now comes the rub. The Tribunal held that the effect of the certification by the Home Secretary of the claim under the Refugee Convention was to deprive the Tribunal of any jurisdiction to hear an appeal against the rejection of the claim under the Human Rights Convention. It is the correctness of that decision which is the issue in this appeal. The Legislative background Parliament amends the statutes relating to immigration with great frequency. The present case turns on the Immigration and Asylum Act 1999 as it was originally enacted. It has since been amended by the Race Relations (Amendment) Act 2000. There are now proposals to amend it further. We cite the 1999 Act in its original form: s.58 - (2) Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part. - (3) Part II of Schedule 4 makes provision as to the effect of appeals. - (4) Part III of Schedule 4 makes provision - (a) with respect to the determination of appeals under this Part; and (b) for further appeals. s.65 - (1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision … (2) … an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. (3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights. (4)The adjudicator, or the Tribunal, has jurisdiction to consider the question. (5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground. (6) “Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention s.66 - (1) This section applies if directions are given for a person’s removal from the United Kingdom – (a) on the ground that he is an illegal entrant … s.69 - (5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention”. The Fourth Schedule to the Act contains important provisions in relation to appeals: 9 (1). This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which (a) sub-paragraph (3), (4), (5) or (6) applies; and (b)sub-paragraph (7) does not apply. (2) If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal. (3) This sub-paragraph applies to a claim if, on his arrival in the United Kingdom, the appellant was required by an immigration officer to produce a valid passport and – (a) he failed to do so, without giving a reasonable explanation for his failure; or (b) he produced an invalid passport and failed to inform the officer that it was not valid. (4) This sub-paragraph applies to a claim under the Refugee Convention if – (a) it does not show a fear of persecution by reason of the appellant’s race, religion, nationality, membership of a particular social group, or political opinion; (b) or it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist. (5) This sub-paragraph applies to a claim under the Human Rights Convention if – (a) it does not disclose a right under the Convention; or (b) it does disclose a right under the Convention, but the claim is manifestly unfounded. (6) This sub-paragraph applies to a claim if – (a) it is made at any time after the appellant – (i) has been refused leave to enter the United Kingdom under the 1971 Act; (ii)has been recommended for deportation by a court empowered by that Act to do so; (iii) has been notified by the Secretary of State’s decision to make a deportation order against him under section 5 (1) of the 1971 Act as a result of his liability to deportation; or (iv) has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act; (b) it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false; or (c) it is frivolous or vexatious. (7) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent. (8) “Contrary to the Convention” means contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention. 22.(1) … any party to an appeal … to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal. The 1999 Act as it stood had a number of features. Various sections in Part IV of the Act give a right to appeal to an adjudicator against a variety of administrative decisions affecting an immigrant. Such a right of appeal may exist on grounds which have nothing to do with a claim (“a non-Convention claim”) under the Human Rights Convention or a claim under the Refugee Convention. For reasons which we shall give later in this judgment, like the Tribunal we consider that the scheme of the Act is that in relation to any one administrative decision, there should only be one appeal to an adjudicator, albeit that this could be on a number of grounds which might be unrelated or related. Paragraph 22 is in Part III of Schedule 4. That Part is introduced in section 58(4) of the Act as making provisions for appeals under this Part - presumably Part IV of the 1999 Act. Subject to any requirement of any rule, paragraph 22 gives a right of appeal to the Immigration Appeal Tribunal from the decision of an adjudicator on appeal to any party to that appeal who is dissatisfied with the adjudicator’s determination. This is, we think, the first time that the right of appeal to the Immigration Appeal Tribunal is to be found, not in the main Act, but in a Schedule. Paragraph 9 is in Part I of Schedule 4. That Part is introduced in section 58(2) of the Act a making provision in respect of the procedure applicable in relation to appeals under Part IV of the Act. It is perhaps odd to find a major inhibition on appeals tucked away there. A number of preliminary points can be made in relation to this paragraph. (i) Subparagraphs (4) and (5) refer to two different claims : one under the Refugee Convention and one under the Human Rights Convention. An appellant before an adjudicator may make a claim under either or under both or under neither. (ii) Where an appellant makes a claim under neither, paragraph 9 simply has no application. Paragraph 22 gives the Immigration Appeal Tribunal jurisdiction to consider an appeal by such a person. (iii) The appeal referred to in paragraph 9(1) is the appeal to the adjudicator. (iv) The words “the claim” in paragraph 9(2) refer back to “that claim” in paragraph 9(1). (v) The certificate of the Secretary of State relates to a claim not to an appeal. The appellant must in his grounds of appeal indicate the Convention under which he claims. There is nothing to prevent an appellant claiming under both Conventions. The Secretary of State must in his certificate identify which of sub-paragraphs (3),(4), (5) or (6) applies in his opinion. Although that conclusion is not compelled by the grammar of paragraph 9(1), it is in our judgment compelled by the general law. Any other conclusion would not compel the Secretary of State to set out his conclusion with that clarity which the rule of law requires in order to enable the affected person and the adjudicator to test whether the decision involves some error of fact, appreciation or law. We do not understand any of the foregoing to be disputed on behalf of the Secretary of State. One or Two claims? In the case of an appellant who ( in the words of subparagraphs (4) and (5) of Paragraph 9) has a claim under the Refugee Convention and also has a claim under the Human Rights Convention the question arises whether he is to be regarded for the purposes of Paragraph 9 as making one claim or two claims. We accept that Paragraph 9(1) can be construed as regarding such an appellant as making only one claim, namely, a claim that his removal would be contrary to the United Kingdom’s obligations under the Refugee Convention or the Human Rights Convention and that such a claim comprises a claim that it would be contrary to the UK’s obligations under both Conventions. That is the way the Immigration Appeal Tribunal construed Paragraph 9(1). It is however in our view possible to regard such an appellant as making two claims albeit in one appeal - one that his removal would be contrary to the UK’s obligation under the Refugee Convention and another that his removal would be contrary to the UK’s obligations under the Human Rights Convention. Such a construction fits in neatly with the Secretary of State’s obligation to state his opinion in his certificate with that clarity which the law requires. For reasons which appear later in this judgment we prefer the two claims construction. Two appeals? The appellant’s primary submission as advanced by Mr Gill QC was that there were two appeals and since only one had been certified the other could go ahead. He submitted, correctly, that rights of appeal are given by different provisions in different parts of the Act, in the present case s.65(1) and s.69(5). He then submitted that this suggested that an appeal in pursuance of the right given under one section was a different appeal from that made in pursuance of the right given under another section. We do not accept this analysis. We approach the matter as follows. In a simple case such as the present, one first identifies the administrative act against which it is sought to appeal. It is the immigration officer’s direction to remove the immigrant to Latvia. Then one looks to see whether this direction may be appealed to an adjudicator and if so on what grounds. In the present case section 65(1) gives the immigrant a right of appeal to an adjudicator on the ground that such a removal is made unlawful by section 6(1) of the Human Rights Act and section 69 (5) gives a right of appeal on the ground that the removal would be contrary to the Refugee Convention. We see this as one appeal on two grounds against one administrative decision. That perception was clearly shared by the Refugee Legal Centre who prepared one notice of appeal on behalf of Mr Zenovics in which they specified two grounds, one relying on the Refugee Convention and the other relying on the Human Rights Convention. The adjudicator in due course heard only one appeal against one administrative decision. That appeal was advanced on several grounds. It does not seem to us to be necessary to deal at length with the provisions in sections 73-78 which are designed to achieve a situation in which all possible grounds for challenging the administrative action which adversely affects the immigrant are dealt with at the same time. Suffice it to say that they contain nothing which invalidates the above analysis. If anything, they support it. The Tribunal decision The Tribunal held that there was only one appeal before the appellate authority which might contain different grounds or claims. They observed that the adjudicator had agreed with the opinion certified by the Secretary of State. They held that in such circumstances paragraph 9(2) precludes any appeal to the Tribunal. We accept that where an appellant makes a claim under one Convention which is certified by the Secretary of State, the literal reading of paragraph 9(2) precludes any further appeal to the Immigration Appeal Tribunal because, on the face of it, all that the Ajudicator is required to consider is whether he agrees with the assertion by the Secretary of State that he has in fact certified the claim. He is not, on a literal reading, required to consider whether he agrees that the certification was justified. However, Mr Hunter, who appears on behalf of the Secretary of State, accepts, as we understand him, that the literal reading of paragraph 9(2) referred to in the preceding paragraph manifestly did not represent the intention of Parliament. What Parliament intended was that the adjudicator should be able to judge whether he agreed with the opinion of the Secretary of State. It is we believe common ground that it is permissible in those circumstances to delete the words “that the claim is one to which this paragraph applies” in paragraph 9(2) and substitute “with the opinion expressed in the Secretary of State’s certificate”. This rectifying construction (as Bennion calls it in section 287 of the 3rd edition of his ‘Statutory interpretation’) is probably no longer necessary. Parliament by Paragraph 39 of the 2nd Schedule to the Race Relations (Amendment) Act 2000 appears to have done this expressly. The 2 nd Schedule to the 2000 Act is described in section 9 as making consequential amendments. We have some difficulty in seeing how the amendment is consequential on anything in the 2000 Act but need consider that matter no further in the present context. That leaves us with paragraph 9(2) reading: “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”. That however would still inhibit an appeal to the Immigration Appeal Tribunal which was based on two claims one of which had been certified. One instance would be an appeal which was concerned with a non-Convention claim and a claim under one of the Conventions. Another instance would be where a claim was made under each of the Conventions and one was certified and the other was not. The second is, of course, the present case. If one starts with the proposition that paragraph 9(1) refers merely to one composite claim even though it might have two bases and adopts a literal reading of Paragraph 9(2) then one reaches ineluctably the conclusion reached by the Tribunal, namely, there is no right of appeal to the Immigration Appeal Tribunal even in respect of the rejection by the adjudicator of a contention in relation to which the Secretary of State had not certified anything. We would be extremely surprised if this had actually been Parliament’s intention. Take an immigrant who on arrival asks for permission to enter on the basis of a family relationship and is refused. He has a right of appeal to an adjudicator - s.59 of the 1999 Act - and (subject to leave) to the Immigration Appeal Tribunal. Can it really have been Parliament’s intention to deprive him of that right of appeal to the Immigration Appeal Tribunal because he was ill advised enough to couple with his existing claim a claim under the Human Rights Convention which the Secretary of State has certified? Take an immigrant who makes a justified claim under the Refugee Convention and another claim under the Human Rights Convention and thereafter there is a revolution in his home country so that the Refugee Convention claim is no longer tenable and is certified. Can it really have been Parliament’s intention to deprive him of the right of appeal to the Immigration Appeal Tribunal in respect of his uncertified claim under the Human Rights Convention which he would have had if only he had not advanced the, at the time, perfectly reasonable claim under the Refugee Convention? Take an immigrant who makes a claim under the Refugee Convention and another claim under the Human Rights Convention based on the fact that he was very ill and expected to die shortly. In due course to his doctor’s surprise he gets better and the Secretary of State certifies that at the time of the certificate the Human Rights Convention claim is manifestly unfounded. There is perhaps an argument that the certificate must be based on the facts as they were at the time when the claim was made; it is certainly not a strong one, although we do not decide the point. Assuming that it is wrong and the adjudicator correctly agrees with the certificate, can it really have been Parliament’s intention that the immigrant should be deprived of his normal right to appeal the determination of his claim under the Refugee Convention? We asked Mr Hunter if he could advance a tenable reason for supposing that this was Parliament’s intention. He conceded that some of the results of the Tribunal’s interpretation were unfortunate. He submitted however that there were advantages to the Tribunal’s interpretation so that it could not be said that their interpretation gave rise to an absurd result. He suggested the following: there would be a reduction in the number of cases where the Tribunal made a finding of fact which was inconsistent with a finding of fact made by an adjudicator. When asked what he had in mind, he instanced the following possibility. An immigrant who made claims which invoked each Convention but which rested on identical facts. One was certified on the basis that the immigrant was manifestly fraudulent but the other was not certified. The adjudicator agreed with the certification. If the immigrant could appeal the other and the Immigration Appeal Tribunal came to the conclusion that the immigrant was in fact truthful then there would be embarrassment all round. We accept that there might be embarrassment but that is a feature of any appellate system. The advantages accruing to the appellant far outweigh the embarrassment. We suggested from the Bench that a possible advantage to adopting the construction of the tribunal might be that immigrants would be discouraged from relying at any stage on bad grounds for fear that these might be certified and pull down better grounds with them. As we understood him, Mr Hunter embraced that as a possible justification. However, he was in some difficulty in advancing this. The Tribunal opined in its determination that the certification of one claim had such unfair results that the Secretary of State should certify both or neither. We understand that policy has been adopted by the Secretary of State. That, admirable as it may be thought to be (at any event in situations where there is no non-Convention claim involved), is difficult to reconcile with a policy of discouraging immigrants from relying on bad grounds. Although the suggestion came from the Bench we reject it. The formulation of grounds of appeal is done rapidly, often by people with no mastery of either English law or the English language. All this in an area where the law is riddled with obscurities and regularly amended by primary or subordinate legislation and by rules. To have these sort of consequences attend the formulation of a claim is so disproportionate that, like the Tribunal, we can not believe it was intended. What was clearly intended was to inhibit a further appeal on the ground which had been certified. This result is easily achieved by the addition of a few words to paragraph 9(2) so as to make it read: “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 in respect of that claim”. We therefore adopt a construction which has that result. While there are undoubtedly many misguided claims made under the Conventions there are many which raise issues of fact and/or law of considerable difficulty where it is easy for even the most conscientious adjudicator to come to a decision which would not have been upheld by the Tribunal if there had been an appeal there. The removal of the possibility of appeal will increase the possibility of this country being in breach of its international obligations under the Conventions and unjust and unlawful decisions being maintained. The construction adopted by the Tribunal has the result of potentially discouraging persons from making claims under the Human Rights Act and we see no reason to suppose that this was Parliament’s aim. Mr Hunter submitted that, while different views might be taken as to the desirability of the certification procedure as interpreted by the Tribunal, the interpretation adopted by them was the natural one on the words chosen by Parliament, gave rise to no ambiguity and did not give rise to an absurdity. In those circumstances, he submitted, this court should not start writing things into the statute which simply were not there. The court will always hesitate long before, in effect, redrafting an Act. But there are times when not to do so will clearly give rise to a situation which Parliament cannot, in the judgment of the court, have desired. The present, as Mr Hunter accepts, is such a situation. He is prepared to accept the redraft suggested in paragraph 26 above as being justified. We go further than him and regard the redraft suggested in paragraph 34 above as being justified. We therefore allow the appeal and remit the matter to the Tribunal for it to consider whether it should grant leave to appeal. Order: Appeal allowed; Respondent do pay the appellant’s costs the appeal; such costs to be subject to detailed assessment; case remitted to the Immigration Appeal Tribunal for it to consider whether it should grant leave to appeal. (Order does not form part of the approved judgment) © 2002 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII