Tribunal decisions

The decision

MM (Certificate & remittal, jurisdiction) Lebanon [2005] UKIAT 00027

IMMIGRATION APPEAL TRIBUNAL

Date: 19 January 2005
Determination delivered orally at Hearing
Date Determination notified:
....31/012005....

Before:

The Honourable Mr Justice Ouseley (President)
Mrs J A J C Gleeson (Vice President)
Dr H H Storey (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Appearances:
For the Appellant: Ms E Dubicka, instructed by Soloman Reed Solicitors
For the Respondent: Mr M Blundell, Home Office Presenting Officer

DETERMINATION AND REASONS
1. This case is something of a procedural muddle. It is an appeal from the determination of an Adjudicator, Mr G Jamieson, promulgated on 23 December 2003. The background to how it came before him is of significance.

2. The Appellant is a Lebanese citizen who claimed asylum in 2000 and was refused asylum in May 2001. When refusing asylum, the Secretary of State certified the asylum claim under paragraph 9(4)(b), Schedule 4 to the Immigration and Asylum Act 1999. Those provisions relate to the asylum claim. There are other provisions within paragraph 9 which relate to human rights claims but which were not referred to in the Secretary of State’s letter.

3. The Adjudicator, Ms M B Lynch, heard the appeal in November 2001 and dismissed it. She considered the opinion expressed in the certificate and upheld it. She was clearly aware from paragraph 3 of her determination that the certificate related to the asylum subparagraphs of paragraph 9. In paragraph 60 of her determination, she said in relation to the certificate:

“I agree that the Respondent was right to certify this case under paragraph 9(4)(b) and paragraph 9(7). It is clear from the facts before me that there is no reason to fear persecution if the Appellant was returned to Lebanon today, and there has been no evidence relating to torture.”

4. She dismissed the appeal and concluded that the decision did not give rise to a breach of the Human Rights Act.

5. The effect of the upholding of the certificate was, by virtue of paragraph 9(2) of Schedule 4 to the 1999 Act, that there was no right of appeal to the Tribunal.

“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 to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which-
(a) sub-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 [with the opinion expressed in the Secretary of State’s certificate], paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.”

6. At that time, the decision of the Court of Appeal in Zenovics [2002] EWCA Civ 273 had not been decided. The effect of that case was to hold that where one of two claims had been certified, paragraph 9(2) should be read so as to prevent a right of appeal to the Tribunal “in respect of that claim”. Paragraph 20 of the Court of Appeal’s decision shows that there was, however, only one appeal, although it could be made on two grounds against one decision.

7. The certificate in the state of the law as it was after the promulgation of the first Adjudicator’s determination, however, meant that it could only be challenged by way of Judicial Review. An application for Judicial Review was made and dealt with by Consent Order on 8 August 2002. The Consent Order referred in the recital to the Secretary of State “withdrawing his certificate in this case in relation to the Claimant’s human rights claims” and the Consent Order stated in the operative part:

“(1) that part of the determination of the Special Adjudicator dated 28 December 2001 relating to the Secretary of State’s certificate in relation to the Claimant’s human rights claim be quashed;
(2) the matter be remitted to the Immigration Appellate Authority and that the determination be repromulgated by the Special Adjudicator as an uncertified case, in relation to the Claimant’s human rights claim”.

8. The determination was indeed repromulgated and, so far as one can see, there were no textual differences. It was merely repromulgated with a change to the front page saying “Repromulgate as non-certified appeal” with various other semi-legible scribblings. Although there was a certain amount of debate as to whether the Secretary of State could, in the light of the subsequent authority of Dube [2003] EWCA Civ 114, 13 February 2003, agree to the withdrawal of the certificate, nonetheless it is clear that the upholding of the certificate was quashed in relation to human rights claims.

9. This whole Consent Order is now something of a red herring because it did not purport to quash the certificate or the upholding of the certificate by the Adjudicator in relation to the asylum claim; it purported only to do so in relation to the human rights claim. It is perfectly clear the human rights claim was never certificated and the Adjudicator did not think that it was either.

10. The Appellant sought permission to appeal from the repromulgated determination of the first Adjudicator and the terms of the grant of permission to appeal referred to no limits on the grounds of appeal. The particular basis for the appeal were allegations of unfairness by the Adjudicator in relation to the conduct of the appeal or difficulties which had arisen which required different handling. The Tribunal heard the appeal and, in a determination promulgated on 17 October 2003, allowed the appeal and remitted it because of the problems which had arisen. In remitting it, it made no reference to the scope of the appeal before it and placed no restrictions on the scope of the remittal hearing by the fresh Adjudicator.

11. There was debate before the second Adjudicator as to the powers which the Tribunal had or which it purported to exercise when it granted permission to appeal and dealt with the appeal. The position to our mind is quite clear. Because the asylum certificate had not been quashed on Judicial Review, there was no appeal to the Tribunal on asylum grounds. The Tribunal could not, by granting permission to appeal, grant greater rights than the Appellant had, nor in its decision could it reach a view on asylum matters or remit asylum matters to the Adjudicator. The Tribunal’s permission and substantive decisions were concerned only with human rights matters.

12. There was next a debate before Mr Jamieson as to whether or not the effect of the Tribunal’s decision had been to enable the Adjudicator to consider both the human rights and the closely inter-related asylum grounds. The Adjudicator, with the encouragement, it appears, of the parties, took the view that it would be sensible for there to be only one hearing of the substantive merits of the asylum and human rights claim if he had jurisdiction to hear the asylum claim. However, he took the view that the effect of the proceedings which we have referred to, was to mean that there was before him only the human rights claim. He therefore decided that, in view of the jurisdictional issue, he would dismiss the human rights claim without hearing evidence so that if he were wrong in his approach to the jurisdictional issue, he could be put right and the whole of the asylum and human rights claims could be considered together with evidence being given on them only once.

13. Although the scope for argument is wide, it has become clear to us that the question of the Adjudicator’s jurisdiction upon a remittal falls within a fairly small compass. It is accepted by Mr Blundell correctly that except where statute imposes a particular limitation or where the Tribunal exercises any of its particular powers to limit the scope of remittal, the appeal before a second Adjudicator on remittal is as broad as the appeal before the first Adjudicator was. In effect, the appeal is there for re-determination. It is also accepted and clear, following Zenovics, that there is only one appeal, even though it may be brought on the basis of asylum and human rights grounds.

14. Ms Dubicka submits that the position is that matters are wholly at large, notwithstanding that the Tribunal itself had no jurisdiction in relation to the asylum claim. The effect of the remittal is to place the second Adjudicator in the position of the first Adjudicator. Turning to paragraphs 9(1) and (2) of Schedule 4 to the 1999 Act, that Adjudicator is hearing an appeal under Part IV of the 1999 Act. She submits that this is, in view of the certificate, an appeal to which paragraph 9 applies and the question of the Adjudicator’s agreement is a matter for the Adjudicator who hears the appeal.

15. Mr Blundell submits that that is not the position at all. The Tribunal cannot, by remitting the matter, create a greater jurisdiction in the Adjudicator than it itself had. The limitation on the appeal to the Tribunal limits the effect of the remittal to the Adjudicator. He submits that paragraph 9(2) does not arise because an Adjudicator has already agreed with the opinion expressed in the certificate and that that power to agree or disagree, having once been exercised to agree, does not arise for reconsideration.

16. The Tribunal drew the parties’ attention to the decision of the Court of Appeal in Vairavanathan [2002] EWCA Civ 1310. That case concerned the converse situation to the one which we face here. The first Adjudicator disagreed with the appeal but did not uphold the certificate. The matter went on appeal to the Tribunal and was remitted. The second Adjudicator, however, agreed with the certificate. The Court of Appeal concluded that he had jurisdiction to do so. It said, in paragraph 18, recording submissions on behalf of the Secretary of State which it accepted, as follows:

“18. On remittal the adjudicator does not effectively hear the appeal that would otherwise have been heard by the IAT, that is he is not subject to the same jurisdictional limitations as the IAT. On the contrary, on remittal the adjudicator hears afresh the ‘appeal to an adjudicator’ against the decision on ‘the claim’. I think it is at this point, or round about this part of the argument, that Mr O’Callaghan parts company from Mr Eicke.”

17. The submissions continued in paragraph 21 and 23, as follows:

“21. Mr Eicke submits that this essentially fact-finding jurisdiction is most appropriately exercised by the first instance tribunal charged primarily with the fact-finding jurisdiction. Whether it is the first adjudicator or the second adjudicator, especially where the appeal was remitted to the second adjudicator for hearing de novo on the basis that ‘it would be impossible to say that the determination is soundly based on the evidence’. So, submits Mr Eicke, the second adjudicator was entitled to exercise his jurisdiction under paragraph 5(7) of Schedule 2 of the 1993 Act to agree with the certificate. By so doing, the second adjudicator barred the respondent’s second appeal to the IAT. So it is submitted that the judge was wrong in finding that the second adjudicator did not have such power.

23. He submits, and it is not in despite, that before the Immigration Appeal Tribunal there was only an appeal against the determination of the first adjudicator and he submits that that determination having been quashed, all that was left for the second adjudicator to do was to carry on, as it were, from where the first adjudicator had left off, once he had disagreed with the certification given by the Secretary of State.”

18. Schiemann LJ concluded, in paragraph 24 as follows:

“24. For my part, I do not regard the statutory provisions as giving rise to that possibility, nor do I think it desirable that they should do so. The present case illustrates precisely how things can go wrong. The first adjudicator quite possibly applied her mind to the wrong case when she was dealing with this case; that was the basis on which the Immigration Appeal Tribunal sent the matter back. It would be unfortunate, to say the least, that if that was indeed the case that a disagreement with the certificate which had been procured in circumstances where the adjudicator was thinking of the wrong certificate should somehow or other have effect in a case which is eventually sent to another adjudicator who can apply his mind to the right certificate.”

19. Mr Blundell contended that that case is distinguishable from the present case, precisely because the certificate had not been upheld first time and therefore its effect was different from the position here where it had been upheld.

20. We simply observe, at this stage, that it is curious and not desirable that the Secretary of State should have a second bite at the certificate cherry if he loses first time, whereas the appellant on his submissions would not have a second bite at the cherry if he were unsuccessful first time. This one way ratchet is not appealing as Mr Blundell recognised.

21. Mr Blundell then submitted that the solution to the problem was to be found in what the Court of Appeal had said in Dube [2003] EWCA Civ 114. This concerned the power of the Secretary of State to withdraw certificates. It reflected problems created by the first instance decision in Zenovics and a policy which the Secretary of State had devised of trying to deal with the practical problems. The Court of Appeal was concerned with the problems that arose for the Tribunal hearing an appeal where one claim had been certified and the other had not. The Court of Appeal held that the certificate could be withdrawn by the Secretary of State at any time before the Adjudicator agreed with it, but he could not do so thereafter. Recognising the practical problems that the Tribunal would face with one claim certified and another, perhaps closely related, not certified, it concluded that there were practical solutions to be adopted. Simon Brown LJ said at the end of paragraph 25:

“Were the logical consequence of that to be that the respondent was also entitled on the IAT’s findings to refugee status, it seems to me that the Secretary of State would then be bound either to recognise that fact and grant asylum, or at the very least to accept that there were grounds for a fresh asylum claim which would then have to be determined and, if refused, would open up fresh appeal rights.”

22. Mr Blundell’s suggestion that Dube prescribed the solution to the problem which arose in this case is, in our judgment, wrong. The Court of Appeal was there dealing with withdrawal by the Secretary of State before agreement, and the power of the Tribunal where a certificate was in force for one aspect or ground of appeal. It was not purporting to deal with the position that arises where an appeal is remitted, nor was it saying that remittals should not take place and that the only solution to the dilemmas that sometimes arise was for the human rights claim to be considered and the Secretary of State to rectify an anomalous outcome on the asylum claim by administrative action later.

23. Part of the problem, to our mind, stems from a misapprehension as to what a certificate is and what the effect of an Adjudicator’s decision is. The certificate is the expression of an opinion by the Secretary of State as to the merits of the case. It is a certificate and opinion which remain in existence, whether or not an Adjudicator agrees or disagrees with it. Its force or effectiveness is simply to remove a right of appeal to the Tribunal where the Adjudicator agrees with it. The position therefore is that when an appeal is remitted, in the absence of a specific statutory limitation, the appeal is before the second Adjudicator as it was before the first Adjudicator. There is no specific statutory limit that deals with this situation. There was no specific limitation imposed by the Tribunal in its determination. The fact that the Tribunal itself had limited powers cannot be itself determinative of whether there is a limitation, otherwise the decision in Vairavanathan would have been different. We also take the view that that case demonstrates that, on remittal, matters are at large as is the general position.

24. When we then turn to apply the provisions of paragraph 21 of Schedule 4 to this appeal, the general appeal provisions are subject to any restriction on the grounds of appeal, but there are no restrictions on the grounds of appeal to the Adjudicator. Paragraph 9(1) and (2) relate to an appeal to which the paragraph applies and the Adjudicator whose agreement is required is the Adjudicator who is hearing the appeal. That was the Adjudicator hearing the second appeal and so, notwithstanding the limitations on the Tribunal’s powers, there were no such limitations imposed when the second Adjudicator came to determine the appeal that was then before him. That appeal was the same as the appeal before the first Adjudicator. It was incumbent upon the second Adjudicator to consider whether he agreed or not with the certificate and he was obliged to reach his own view on whether he did or did not do so.

25. The Adjudicator accordingly erred in his judgment as to whether he did not did not have jurisdiction. Additionally, although we appreciate the pragmatic thinking which underlay his approach to the human rights issues before him, an Adjudicator whose powers are in some ways limited ought nevertheless to deal with the issues which he does have jurisdiction to deal with. It might have avoided the necessity for all these proceedings because, depending upon the view which he had formed in relation to the human rights matters, the pragmatic further solution referred to by Simon Brown LJ in Dube might have avoided the need for these further proceedings.

26. But, as it is, the determination of the Adjudicator is quashed and the matter should go back for hearing before another Adjudicator than Mr Jamieson or Ms Lynch. By the time it is heard, we anticipate that it will be dealt with by the AIT. It would be appropriate for consideration at least to be given as to whether it should be heard by a panel because it has been in the system for a very long time now, but we are not able to make any directions to that effect.

27. This determination is reported for what we say about jurisdiction and certification.

MR JUSTICE OUSELEY
PRESIDENT