Tribunal decisions

The decision

ST (NS Case - Scope of appeal) Sri Lanka [2005] UKIAT 00006

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 27 September 2004
Date Determination notified:
19 January 2005
Before:

Mr C M G Ockelton (Deputy President)
Mr P R Moulden (Vice President)
Miss K Eshun (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Mr J Martin, instructed by Messrs Raja & Co
For the Respondent: Mr A Underwood QC and Mr S Grodzinski, instructed
by Treasury Solicitor

While a certificate under s 11 or 12 is in force there is no in-country appeal under s 69. There is an appeal under s 65 (unless that appeal has been certified under s 72(2)(a)) but that has to be on the basis that removing him to the third country breaches his human rights.

DETERMINATION AND REASONS

1. The Appellant, a citizen of Sri Lanka, appeals, with permission, against the determination of an Adjudicator, Mr F R C Such, dismissing his appeal against the decision of the Respondent who on 22 December 2000 refused him leave to enter and decided to remove him to the Netherlands, having previously refused him asylum and on 12 December issued a certificate under section 11 of the 1999 Act.

2. The Appellant has argued that, despite the terms of s 72 of the 1999 Act, he has a right of appeal under both ss 65 and 69 of that Act. Before us, however, Mr Martin accepted on his behalf that the Secretary of State’s skeleton argument was correct on this issue and that there is no right of appeal from within the United Kingdom on asylum grounds.

3. In order to succeed in an appeal on human rights grounds, the Appellant in this case needs to show that his removal to the Netherlands exposes him to a real risk of treatment contrary to Article 3. It has not been suggested that such would occur in the Netherlands. The question is therefore whether the Appellant has established that the Netherlands authorities would return the Appellant to Sri Lanka, and that such ill-treatment would take place there. This is the composite question whose risk has to be assessed; and it amounts in essence to the question whether there is a real risk that the Netherlands authorities will act in breach of Article 3.

4. The material before the Adjudicator and before us shows that the Appellant has previously claimed asylum in the Netherlands twice. His first claim was rejected on 29 February as it was “clearly groundless” (in the words of the translation we have). The second application was rejected on 22 June 2000 in view of the following consideration:

“It is not apparent from the applicant’s declaration that the present application is based on new points or circumstances. In fact the motives put forward for asylum by the applicant are those which he put forward at the first proceedings. Furthermore the applicant stated that he would not have submitted a second application if he had not been advised to do so by his authorised representative.”

5. In our view, this decision contains a clear implication that the Netherlands authorities will give substantive consideration to a new application that is based on “new facts or circumstances”. Despite Mr Martin’s submissions to the contrary, we find that there are clearly such facts or circumstances in this case. There is before us, as there was before the Adjudicator, a report by Dr Michael Seear dated 22 April 2002. That report indicates that the marks on the Appellant’s body are “most singular and … highly consistent with” his allegation of torture in Sri Lanka by being hung up on hooks (which the Appellant described in detail to the doctor). Not only is this specific expert evaluation of the evidence new, but it is in our view inconceivable that an asylum claim supported by it could be regarded by the Netherlands authorities as “clearly groundless”.

6. There is, further, no evidence before us that (independently or in conjunction with an asylum claim) the Appellant or anybody else in the Netherlands is at risk of being treated by the Netherlands authorities in a manner contrary to Article 3 by removal from the Netherlands to a place of risk or in any other way.

7. We accordingly find that the Appellant has not established that his removal to the Netherlands will breach his human rights. We accept the Secretary of State’s skeleton argument in full: as slightly amended at the hearing, it is appended to and forms part of this determination.
8. This appeal is dismissed.

C M G OCKELTON
DEPUTY PRESIDENT

IN THE IMMIGRATION APPEAL TRIBUNAL NS/15257/01

MR. SOMASUNDARAM THAVAKUMARAN
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT

SECRETARY OF STATE’S SKELETON ARGUMENT

1. The Secretary of State understands that the Tribunal adjourned this appeal so that it could give full consideration to the interpretation of, and interplay between, sections 11, 12, 65 and 72 of the Immigration and Asylum Act 1999 (“the 1999 Act”). In particular, the Tribunal has invited submissions on the extent of the right of appeal under section 65, and the implications of restricted and wide interpretations. This Skeleton will set out the Secretary of State’s position on those sections, and will then briefly comment on their successor provisions in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). It will then turn to the application of the law to the instant appeal.

The 1999 Act
The mechanism of certifying under section 11

2. The starting point is that an asylum claimant may not be removed from, or required to leave, the United Kingdom until the Secretary of State gives him notice of the decision on his asylum claim: section 15(1).

3. That bar does not operate where the Secretary of State has issued a certificate under section 11: see section 11(2).

4. The fact that a section 11 certificate lifts the bar imposed by section 15 means that Parliament must have contemplated the section 11 certificate to be issued, and removal effected, where no substantive decision has been made on the asylum claim.

5. The structure of section 11 is such that where the Secretary of State decides to remove a claimant and certifies his claim, a member state of the EU is regarded as one that will not act in breach of the Refugee Convention directly or indirectly: see section 11(1). (Such a member state is generally referred to as a “safe third country”). In short, the deeming provision applies when considering whether the decision to remove places the United Kingdom in breach of its obligations under the Refugee Convention.

The mechanism of certifying under section 12

6. Section 12 deals with two discrete categories of third country. The first is those identified in subsection (1), namely a member state of the EU to which removal is not being made under standing arrangements (i.e under the Dublin Convention), or a designated country which is not a member state. The second category, identified in subsection 4, is a country which is not a member state or a designated country.

7. The difference in treatment between the two categories relates to appeals, which will be dealt with below.

8. The common features of both categories are that
a. a certificate given under the section removes the bar imposed by section 15: subsections 12(2) and (5);
b. to invoke the section the Secretary of State must certify that the conditions set out in subsection (7) are fulfilled. Those conditions are to the effect that the claimant is not a national of the third country and that it is a safe third country.

9. The distinction between section 11 and section 12 certificates, accordingly, is that the safety of the third country (under the Refugee Convention) is deemed under section 11. Under section 12 that safety must be certified, and accordingly Parliament must have intended the issue of safety to be open to challenge.

Rights of appeal

10. By section 69 there are five situations in which a claimant may appeal on the ground that his removal, or being required to leave, would be contrary to the Refugee Convention. It is unnecessary to elaborate on them.

11. By section 65 a person may appeal against any decision under the Immigration Acts relating to his entitlement to enter or remain, if he alleges that the authority taking the decision acted in breach of his human rights.

12. Section 11(3) provides that where a human rights appeal has been made by under section 65, then unless it has been certified as manifestly unfounded (under section 72(2)(a)), the person may not be removed from the UK. Section 11 (2)(b) recognises that as a result of an appeal under section 65, a certificate made under section 11(2) may be set aside.

13. Section 12 contemplates that an appeal under section 65 will impinge on the operation of a certificate issued under it in ways that are similar to the effect of an appeal on a certificate issued under section 11: see sections 12(2), (3) and (5).

14. There is a right of appeal under section 71 against a certificate issued under section 11 or 12, on the ground that any of the conditions applicable to the certificate were not satisfied when it was issued or have since ceased to be satisfied. Clearly, such an appeal does not relate to human rights issues. In respect of a section 11 certificate, that appeal is accordingly limited to the question whether a member state has accepted that, under standing arrangements, it is the responsible state and that the claimant is not a national of it. That follows from the deeming provision. The appeal against a section 12 certificate is not limited by any deeming provision.

15. In the Secretary of State’s submission, where a certificate has been issued under sections 11 or 12, there is no right of appeal under section 69. That is so because:
a. section 72(1) expressly provides that unless a certificate issued under sections 11 or 12 has been set aside on an appeal under section 65 or 71 (or otherwise ceases to have effect), no appeal arises as respects any matter before the appellant’s removal from the UK: its true meaning is that unless and until a certificate issued under sections 11 or 12 has been set aside or ceases to have effect, no other appeal may be brought under the Act, whether or not the appellant is in the country;
b. sections 11 and 12 contemplate removal without determination of an asylum claim. It would be surprising if Parliament had intended them to be dealt with on appeal in the same manner as those decisions which follow from a substantive rejection of an asylum claim;
c. section 71 operates in a manner which allows asylum appeals, subject to restrictions that are consistent with the purpose of sections 11 and 12. It gives three gradations of appeal rights:
i. An appeal against a certificate issued under the second category of section 12 is exercisable in country and may challenge the safety of the third country. That untrammelled right is consonant with the third country not being a member State or designated;
ii. An appeal against a certificate issued under the first category of section 12 is unlimited in scope but only exercisable from abroad: see section 72(2)(b). That reflects the fact that the third country is either a member state (though the removal is not under standing arrangements) or a designated country;
iii. A section 11 certificate is susceptible to appeal only as to the requirements that the third country has accepted responsibility and that the claimant is not a national of that country. Again, that appeal must be brought from abroad: see section 72(2)(b). That is consistent with the third country being a member state to which removal will be made under standing arrangements. If the appeal were not restricted in that way the purpose of section 11 would be frustrated.

The effect of appeals

16. As noted above, a section 65 appeal operates as a bar to removal: sections 11(3) and 12(3), and paragraph 20 of Schedule 4.

17. That bar is itself lifted if the Secretary of State certifies the allegation which gives rise to the appeal to be manifestly unfounded, as the appeal is then only exercisable outside the United Kingdom: section 72(2)(a). This applies if the claimant is to be sent to a member state or a country designated under section 12(1)(b).

18. An appeal under section 71 in respect of a section 11 certificate and the first category of section 12 certificates is only ever exercisable out of country: section 72(2)(b). In respect of the second category of section 12 certificates it is suspensive on its face: section 12(5)(b), and it is exercisable in-country.

19. A section 69 appeal is suspensive: paragraphs 10, 11 and 18 of schedule 4.

The scope of a section 65 appeal

20. The decision against which an appeal may be brought under Section 65, namely “any decision under the Immigration Acts relating to [a] person’s entitlement to enter or remain in the United Kingdom”, is nowhere defined in the Act.

21. The language of the section is wide, as the Court of Appeal noted in R (Kumarakuparan) v SSHD [2002] EWCA Civ 1102, and at least extends to give a right of appeal against removal directions.

22. As is apparent from sections 11(2) and (3) and 12(2),(3) and (5) of the 1999 Act, Parliament intended an appeal to be available on human rights grounds. See paragraphs 12 and 13 above.

23. The purpose of section 65 clearly was to make the adjudicator the “appropriate court or tribunal” under section 7 of the Human Rights Act.

24. It is plain, therefore, that any decision which is part of the chain of events leading to the removal of a claimant may properly be regarded as being capable of “relating to” the entitlement to enter or remain. However, the purpose of the appeal jurisdiction is to give redress for breaches of human rights, and the only conceivable decision relating to the entitlement to leave to enter or remain which could breach human rights is one which will, or is likely to, result in removal or detention.

25. The ramifications of that construction are not wide. A person who alleges that the section 11 or 12 certificate itself breached his human rights will be able to appeal against it, or a subsequent decision to remove him, on that ground while he is in the United Kingdom (assuming that his allegation is not certified under section 72(2)(a)). He will not be able to appeal in respect of the safety of the third country on Refugee Convention grounds while he remains here unless the certificate was in the second category of section 12.

26. Section 72(1) does not detract from that analysis, as it prevents an appeal being conducted in country unless the certificate under section 11 or 12 has been set aside under section 65 or 71. There is no contradiction between that subsection and subsection 72(2)(b): see paragraph 19 above.

27. Section 77 deems the appellant to be bringing all his appeals at once. However, that is subject to section 72(2): see section 77(2). Insofar as an out-of-country appeal right subsists under section 71 the appellant is entitled to two appeals: one on human rights grounds, and one as described in paragraph 15. b. ii. or iii. above.

The 2002 Act

28. The Nationality, Immigration and Asylum Act 2002 was not in force at the time material to this appeal, but in case it may assist the Tribunal, what follows is the Secretary of State’s analysis of the replacement provisions for sections 11, 12, 65 and 72 of the 1999 Act.

Section 11 of the 1999 Act

29. This has been substituted by a new section 11 set out in section 80 of the 2002 Act.

30. The barrier to removal of an asylum claimant until notified of the Secretary of State’s decision, formerly contained in section 15 of the 1999 Act, is now in section 77 of the 2002 Act.

31. That bar is inoperative if the asylum claim is certified under the new section 11 of the 1999 Act. See the new section 11(2).

32. It remains the Secretary of State’s submission that Parliament must have contemplated the issue of a section 11 certificate, and the removal of the asylum claimant, where no substantive decision has been made on the asylum claim.

33. It also remains the Secretary of State’s case that the deeming provision in section 11 as to the safety of the third country arises when determining whether the Secretary of State’s decision to remove a person places the United Kingdom in breach of its obligations under the Refugee Convention: see the new section 11(1).

34. Accordingly the effect of section 11 is unchanged.

Section 12

35. This has been amended by SI 2003 No. 1016. The relevant text is attached.

36. It still deals with the two discrete categories of third country, as subsection (1) is unchanged. The difference between the two categories, which relates to whether an appeal is exercisable in-country, has been retained in section 93(1), which refers to certificates under section 12(2) but not to certificates under 12(5).

37. Certificates issued under section 12 continue to disapply the bar to removal: see paragraphs 11(a) and (c) of the Schedule to SI 2003/1016, provided that the Secretary of State certifies that the conditions set out in the section are satisfied. Those conditions, set out in subsection 7, remain the same.

38. It follows that the distinction between section 11 and both categories in section12 is still that the safety of the third country is deemed in certificates issued under section 11 but not in any certificates issued under section 12.

Rights of appeal

39. Part IV of the 1999 Act has ceased to have effect: section 114 of the 2002 Act. The new scheme gives a general right of appeal under section 82 against an “immigration decision” as defined, which may be brought on defined grounds (section 84) subject to a series of exceptions and limitations (sections 88 to 99). Some of those exceptions and limitations go to preconditions to a right of appeal, and some go to the ability to bring the appeal while in the United Kingdom.

40. The new sections 11 and 12 do not themselves contemplate any appeal against a certificate. Further, there is now no equivalent to section 71 providing for an appeal on the basis that any of the conditions applicable to a certificate were not satisfied when issued or have since ceased to be satisfied.

The effect of an appeal

41. If a competent appeal is brought under section 82 of the 2002 Act, the appellant may not be removed while the appeal is “pending”: section 78(1). Further, where a claimant who is the subject of a certificate under sections 11 or 12 as substituted has made a human rights claim he may not be removed if he has instituted or could institute an appeal under section 82(1) of the 2002 Act: see new section 11(3) and (4) and paragraph 11(e) of the Schedule to SI 2003/1016.

42. However, no appeal may be brought while the appellant is in the United Kingdom if his claim has been certified under section 11(2) or 12(2) of the 1999 Act as amended: section 93(1) of the 2002 Act. There is an exception to that restriction however, which is that the appellant has made a human rights claim and that claim has not been certified as clearly unfounded: section 93(2)(b) of the 2002 Act. The bar to removal contained in sections 11 and 12 of the 1999 Act as amended is also lifted by a “clearly unfounded” certificate: see new section 11(4)(b) of the 1999 Act and paragraph 11(e) of SI 2003/1016. “Clearly unfounded” means the same as “manifestly unfounded” in section 72 of the 1999 Act: R(Michael) v SSHD [2004] EWCA Civ 846 at [7].

This appeal

43. The adjudicator treated the appeal before him as being brought under section 65 (see paragraph 9) against a removal consequent on the certificate issued under section 11(paragraph 11 of the determination). He concluded that no breach of human rights was made out (paragraph 24).

44. The grounds of appeal to the Tribunal contend firstly that the adjudicator erred in treating the appeal as being brought under section 65 (paragraphs 3 to 5) and secondly that his treatment of the risk of breach of human rights was wrong (paragraphs 6 to 9).

45. If the first ground is right then this appeal is incompetent, as there was no in-country right of appeal under section 71, and no right of appeal at all under section 69, for the reasons given above. In fact, the adjudicator was plainly right.

46. It is accepted that the Secretary of State may withdraw a certificate that has been issued under section 11 or 12. The appellant seeks to argue that the Secretary of State’s acts prior to issuing such a certificate may mean that it is void ab initio. That is plainly unsustainable. Despite the disclaimer contained in paragraph 12 of the appellant’s Skeleton, it is tantamount to asserting a right of appeal arising out of an estoppel. As Mr Freeman observed in granting leave to appeal, jurisdiction cannot be created by estoppel.

47. The Secretary of State makes the following submissions on the second ground:
a. the issue for the adjudicator was whether the appellant had established a real risk that he would suffer inhuman or degrading treatment as a result of the return to Holland;
b. it was not suggested that such treatment would occur in Holland. Rather, it was alleged that the Dutch authorities would return the appellant to Sri Lanka, where it would take place;
c. the evidence before the adjudicator included the Dutch decision on the appellant’s claim, which demonstrated that Dutch law allows fresh asylum claims to be brought if new facts or changed circumstances are brought forward;
d. the adjudicator held that Dr Seear’s report constituted such material, and that was plainly a rational conclusion;
e. the adjudicator also held that the asylum claim turned on credibility. He plainly and reasonably believed that the asylum claim and the human rights claim, insofar as they related to the treatment which awaited the appellant in Sri Lanka, were similar;
f. Holland is a signatory to the ECHR and there was no evidence before the adjudicator to suggest that it fails to comply with its Convention obligations;
g. In all the circumstances, the adjudicator was entitled to conclude that removal of the appellant to Holland would not put the United Kingdom in breach of Article 3.

ASHLEY UNDERWOOD QC
SAM GRODZINSKI
14 September 2004
PARAGRAPH 11 OF THE SCHEDULE TO SI 2003/1016

Section 12 of the Immigration and Asylum Act 1999 (removal of asylum claimant other than under standing arrangements with member States) shall be amended as follows -
(a) in subsection (2) -
(i) for "section 15" there shall be substituted "section 77 of the Nationality, Immigration and Asylum Act 2002", and

(ii) paragraph (b) shall be omitted,
(b) subsection (3) shall be omitted,

(c) in subsection (5) -
(i) for "section 15" there shall be substituted "section 77 of that Act", and

(ii) paragraphs (b) and (c) shall be omitted,
(d) subsection (6) shall be omitted,

(e) after subsection (7) there shall be inserted -
" (7A) Subsection (7B) applies where a person who is the subject of a certificate under subsection (2) or (5) -
(a) has instituted or could institute an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (immigration appeal), and

(b) has made a human rights claim (within the meaning of section 113 of that Act).
(7B) The person may not be removed from the United Kingdom in reliance upon this section unless -
(a) the appeal is finally determined, withdrawn or abandoned (within the meaning of section 104 of that Act) or can no longer be brought (ignoring any possibility of an appeal out of time with permission), or

(b) the Secretary of State has issued a certificate in relation to the human rights claim under section 93(2)(b) of that Act (clearly unfounded claim)."