Secretary of State for the Home Department v. Sabapaty Munchula

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Appellant)
v
SABAPATHY MUNCHULA
(Respondent)

HX/76896/95 (12986)

7 February 1996

Tribunal: Professor D C Jackson (Vice-President)
A G Jeevanjee Esq, P Rogers Esq JP

Political asylum-claim characterised by Secretary of State as without foundation-third safe country-Secretary of States policy to consider some third country cases substantively-adjudicator concluded applicants circumstances brought him within that policy-whether adjudicator had jurisdiction to review Secretary of State's extra-statutory policy-whether adjudicator had power to remit the case to Secretary of State for consideration substantively-whether Tribunal had jurisdiction to determine whether a third country was safe. Immigration Act 1971 ss. 19(1)(a), 19(2): Asylum and Immigration Appeals Act 1993 ss. 8(1), 8(6), sch. 2 paras. 4, 5: HC 395 para. 345.

The respondent was a citizen of Sri Lanka. She arrived in the United Kingdom from France. She claimed asylum. The Secretary of State concluded that she should claim asylum in France, a third safe country. He characterised her claim as without foundation. She appealed. The adjudicator concluded that France was a third safe country but found that the respondent's personal circumstances were such that she came within the ambit of the Secretary of State's extra-statutory policy in which he stated that he would consider substantively the applications of some asylum seekers arriving from third safe countries. The adjudicator accordingly remitted the case to the Secretary of State for him to consider it substantively.

The Secretary of State appealed against that direction, to the Tribunal: the respondent before the Tribunal sought to challenge the adjudicator's finding that France was a third safe country.

Held

1. The sole question before the adjudicator in an appeal brought under section 8 of the 1993 Act was whether the removal of the appellant would be contrary to the United Kingdom's obligations under the Convention.

2. The only power to declare that a without foundation certificate was not made out was a power to declare that the claim was not without foundation.

3. There was no power to declare that it was without foundation but that it could not stand because of a policy limiting the exercise of a discretion to consider such a claim substantively.

4. The Tribunal had no jurisdiction to consider whether France was a third safe country.

Mrs. G Sargent for the appellant

J Walsh for the respondent

Cases referred to in the determination:

Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275.

R v Secretary of State for the Home Department ex parte Senay Mehari and ors [1994] Imm AR 151.

Secretary of State for the Home Department v Dhudi Abdi [1996] Imm AR 148.

The Secretary of State appeals against the decision of an adjudicator (Miss J C Gort) insofar as the adjudicator referred an asylum appeal to the Secretary of State for substantive consideration. We heard the appeal on 30 November 1995 but following a subsequent written submission by Mr. Walsh the writing of the determination was postponed to allow either representative to apply for a relisting. In the event both were content for the matter to be determined without further argument.

Issues arising in the appeal

(i)Whether the adjudicator had jurisdiction to consider the applicability or application of the policy relating to substantive consideration of a claim when there is a safe third country.

(ii)If there is appellate jurisdiction, whether the policy is at least arguably applicable.

(iii)Whether, the Secretary of State having appealed to the Tribunal against the decision that the substantive claim should be considered the question of whether there is a third safe country is within the Tribunal's jurisdiction.

The background and the adjudicator's approach

The respondent is a citizen of Sri Lanka. She arrived in the United Kingdom on 15 July 1995 from France and claimed asylum on arrival. The Secretary of State declined to consider her application substantively on the grounds that there was a safe third country to which the applicant could be sent-in this case France. The Secretary of State therefore certified that the appellant's claim that her removal from the United Kingdom would be contrary to the Refugee Convention was without foundation as it did not raise any issues as to the United Kingdom's obligations under the Convention.

The appellant gave evidence before the adjudicator and in the course of that evidence referred to her "husband" in the United Kingdom. Further questioning revealed that she was in fact referring to her fiancé–Selakanabarajah Sivaganam. The appellant's fiancé also gave evidence before the adjudicator and he said that he had arrived in the United Kingdom in November 1993 having left Sri Lanka in August of that year. He was an asylum seeker and no decision had yet been made on his case.

The Secretary of State has adopted a policy of considering whether to assess a claim substantively even where there is a third safe country if the applicant has family connections with the United Kingdom. Given this policy an adjournment was sought by the presenting officer to take instructions on the relevance of the appellant having a fiancé in this country. On this point the determination reads:

"Because of the fact that the respondent was taken by surprise by the identity of the appellant's fiancé, I allowed an adjournment for Mrs. East to take instructions. Having done so, she stated before me that she was instructed that the appellant's fiancé had been refused political asylum in the United Kingdom on 7 December 1993, and had had his subsequent appeal dismissed. He had appealed that dismissal of his appeal to the Tribunal, and a determination was still awaited from the Tribunal. She was further instructed that, throughout his interview, and throughout the hearings of his two appeals, he had made no mention of the appellant as being his fiancée. In the circumstances, I asked for Mr. Sivaganam to be recalled to be asked about these matters. He was cross-examined and admitted all the above facts. He said that the reason he had never mentioned a fiancée previously was that at the time he was only asked if he were married, to which he had said no, and he was not asked for any further details. He was not able to produce any photographs of the engagement, and he was not supporting the appellant financially. However, he did produce a bundle of letters, the earlier ones of which were dated 27 February 1995, 19 March 1995, 28 March 1995 and 22 June 1995. 1 was satisfied on the evidence before me that the appellant and Mr. Sivaganam were telling the truth about this matter, and with regard to the rest of their evidence."

After the adjournment and further giving of evidence the presenting officer in her submissions (in the words of the adjudicator) "cast doubt on whether the parties were engaged as claimed". The presenting officer further stated:

"that, having taken further instructions, the Secretary of State felt that this was not an appropriate case in which he should exercise his discretion. Given that the policy document referred to a spouse, and the appellant was not married, his decision was correct. She further submitted that, as the decision was made outside the Rules, it was not justiciable by an adjudicator. "

Mr. Walsh contended before the adjudicator that the matter should be reconsidered by the Secretary of State first because of the applicability of the policy relating to substantive consideration of claims and secondly as France was not a safe country. In relation to the first contention Mr. Walsh argued that the adjudicator had power to consider the operation of the policy in assessing whether the decision was "in accordance with the law" as provided by section 19(1)(a)(i) of the Immigration Act 1971. The adjudicator held that at the time of the decision it was in accordance with the law as the Secretary of State had not been informed of the respondent's engagement.

However the adjudicator held that the Secretary of State had at the hearing, exercised his discretion in relation to the policy through the giving of instructions to the presenting officer and that this brought the matter within section 19(1)(a)(ii) of the 1971 Act and enabled her to review the exercise of that discretion. The adjudicator continued:

"The Secretary of State based his refusal to exercise his discretion on the fact that he did not accept the engagement existed, whereas I do. I find that the policy document clearly refers to a substantial area of discretion. I accept that, for the purposes of this particular couple, being engaged is tantamount to being married, given the culture from which they come, and I am satisfied that the appellant's fiancé; is on temporary admission as an asylum-seeker in the United Kingdom."

The adjudicator then considered whether France was a safe country for the respondent's return. The adjudicator concluded:

"On the totality of the evidence before me I am satisfied that France will comply with its obligations under the 1951 United Nations Convention relating to the Status of Refugees insofar as this particular appellant is concerned. However, for the reasons given above, I am not satisfied that the respondent has made out his certificate, in that I find that, under the terms of the Home Office declared policy, the appellant's application should be considered in the United Kingdom."

The legal framework

The jurisdiction of the adjudicator and the Tribunal is set out in the Immigration Act 1971 sections 19(1)(2), 20 and the Asylum and Immigration Appeals Act 1993 section 8(1)(6), schedule 2, paragraphs 4 and 5.

So far as relevant the provisions of the 1971 Act read:

"19 (1)Subject to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act-

(a)shall allow the appeal if he considers-

(i)that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or

(ii)where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and

(b)in any other case, shall dismiss the appeal.

(2)For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so.

20 (1)Subject to any requirement of 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."

The appeal is brought under section 8(1) of the 1993 Act. Section 8(1) and 8(6) read:

"8(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.

…

(6)Schedule 2 to this Act (which makes supplementary provision about appeals under this section) shall have effect; and the preceding provisions of this section shall have effect subject to that Schedule."

By virtue of paragraph 4 of schedule 2 of the 1993 Act, subject to qualifications set out in paragraph 5, sections 19 and 20 of the 1971 Act are applied to appeals under section 8 of the 1993 Act. The qualifications set out in paragraph 5 refer to cases in which the Secretary of State has certified that the claim is "without foundation". By virtue of paragraph 5(3) such a claim is one which:

a)does not raise any issue as to the United Kingdom's obligations under the Convention; or

b)is otherwise frivolous or vexatious

Paragraph 5(5) and (6) read:

"5 (5)If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

(6)If the special adjudicator does not agree that the claim is without foundation, he may (as an alternative to allowing or dismissing the appeal) refer the case to the Secretary of State for reconsideration; and the making of such a reference shall, accordingly, be regarded as disposing of the appeal."

It is provided in HC 395, paragraph 345 that "if the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim for refugee status".

The policy on which the adjudicator based her decision that the Secretary of State had not made out his "without foundation" certificate is, as the adjudicator said, set out in a letter to the Refugee Unit of the Immigration Advisory Service. It reads:

"We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where

(a)the applicant's spouse is in the United Kingdom.

(b)the applicant is an unmarried minor and a parent is in the United Kingdom.

(c)the applicant has an unmarried minor child in the United Kingdom.

(In all cases 'in the United Kingdom' should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker)."

The adjudicator's jurisdiction
Jurisdiction under the 1993 Act to review the exercise of discretion s. 19(a)(ii) of the 1971 Act.

There is clearly a discretion under HC 395 paragraph 345 and that discretion would be reviewable by an adjudicator under s. 19(1)(a)(ii) of the 1971 Act. However as both Mrs. Sargent and Mr. Walsh pointed out the review of discretion is not relevant to appeals under section 8 of the 1993 Act. Laws J dealt with this question in R v Secretary of State ex parte Mehari [1994] Imm AR 15 1. The learned judge said that the submission before him that this discretion applied to an appeal under section 8 was misconceived because there was no discretion under the 1993 Act:

"The only grounds which the adjudicator is to consider is the assertion that the applicant's removal as proposed would contravene the United Kingdom's Convention obligations. So section 19(1)(a)(ii) can have no application in a section 8 case."

It follows that the adjudicator has no jurisdiction under the rules to consider any exercise of discretion by the Secretary of State. The adjudicator therefore erred in law in reviewing the exercise of discretion in the context of the policy.

Jurisdiction under the 1993 Act to assess whether decision "in accordance with the law" (s. 19(1)(a)(i) of the 1971 Act).

There remains the question of the jurisdiction of an adjudicator or the Tribunal under section 19(1)(a)(i) of the 1971 Act ie the consideration of whether a decision is in accordance with the law or any immigration rule applicable to the case. As Mr. Walsh has very fairly pointed out in his written submission following the hearing of the case, the broad point made by Laws J applies because of the introductory phrase in section 19 of "subject... to any restriction on the grounds of appeal". Where, therefore, a ground of appeal is specified in the Act, section 19 applies only insofar as it is permitted so to do by the specification.

In essence the provision for an appeal on a particular ground not only focuses the issue before the appellate authority but governs the scope of the appeal. Examples apart from the 1993 Act are appeals under section 17(1) of the 1971 Act against removal directions and deportation appeals within section 5(1) of the Immigration Act 1988. The phraseology of section 8(1) of the 1993 Act means that the appellate authority jurisdiction is confined in an appeal under that provision to the terms of that provision. So any question of whether a decision is in accordance with the law must be confined to the issue of an asserted breach of Convention obligations.

Ex hypothesi the application of the policy is not a matter connected with a Convention obligation. The jurisdiction of the appellate authority therefore differs in scope as between appeals under the 1971 Act where there is no restriction on grounds and under the 1993 Act. As was indicated by the Court of Appeal in Secretary of State for the Home Department v Dhudi Abdi [1996] Imm AR 148 under the 1971 Act the appellate authority has jurisdiction in a case in which there is a general appeal available against the decision to decide whether the matter has been decided in accordance with the law. In that context insofar as a declaration of policy creates rights of having the decision made in accordance with its criteria, whether or not it has been considered in reaching the administrative decision is a matter within the appellate jurisdiction. In the case of restricted appeals under the 1971 Act or the 1993 Act however there is no such jurisdiction (see eg as to deportation appeals within section 5 of the 1988 Act, Sonia Malhi v Secretary of State for the Home Department [1990] Imm AR 275.

We add only that it is perfectly possible for there to be appeals under the 1971 and under the 1993 Act and where a person is refused leave to enter although possessing an entry clearance there may be appeals in this country under both statutes. In that case, any appeal in relation to a refusal of leave to enter because of a refusal to apply the policy would found an appeal under the 1971 Act and as we have said above, the review of a discretion within the rules. In the present case however, an appeal under the 1971 Act could only have been made from abroad and if brought within the applicable period allowed.

The application of section 19(2) of the 1971 Act

Mr. Walsh argued that section 19(2) of itself conferred a jurisdiction on an adjudicator to review the facts of a particular case. However as we said to him at the hearing and as he seems to agree in his written submission the power to review the facts depends upon jurisdiction existing under section 19(1)(a).

Power under schedule 2 of the 1993 Act

As we have said the sole question for the adjudicator under the 1993 Act was whether removal would be contrary to obligations under the Refugee Convention. Further the only power to declare a "without foundation" certificate not made out is if the claim is not "without foundation". There is therefore no power to declare that it is without foundation but that it cannot stand because of a policy limiting the exercise of the power not to consider a claim substantively.

Summary as to the jurisdiction to consider the policy:

1. Under the 1971 Act section 19 the adjudicator has jurisdiction:

(i)Subject to any restriction on grounds of appeal to consider generally whether any policy applicable to the case has been taken into account in reaching the decision and to make relevant factual findings (Section 19(1)(a)(i)(2)).

(ii)In respect of the substantive consideration of a "third safe country" claim, to consider the policy substantively in the context of a discretion under the immigration rules (HC 395 paragraph 345) and to make relevant factual findings (section 19(1)(a)(ii)(2)).

but no appeal will lie against leave to enter unless on entry the appellant had a current entry clearance or work permit (section 13(3)).

2. In respect of appeals under the 1993 Act

(i)the jurisdiction under section 19 of the 1971 Act is restricted to the ground that removal from or the requirement to leave the United Kingdom would be contrary to the Refugee Convention.

(ii)following from (i) the policy in respect of substantive consideration of "third safe country" claims is not within the adjudicator's jurisdiction under either section 19(1) or 19(2).

The content of the policy

The Secretary of State initially appealed on the basis that the ambit of the policy applied by the adjudicator did not include a fiancé and as the initial view of the Tribunal was that there may be jurisdiction to consider the policy, arguments were put concerning it. However as we have no jurisdiction to consider the policy it would not be appropriate to consider its contents.

The jurisdiction of the Tribunal to consider the issue of the safe country.

Where the Secretary of State appeals on the ground that an adjudicator was wrong not to agree with the decision that a third country was safe, this naturally opens the door to both parties to argue that point. Where however the adjudicator agrees that a third country is applicable and safe and therefore under the 1993 Act a claim is "without foundation", a respondent seeking to challenge the safe country finding is in substance no less appealing against the finding than if he or she was the appellant in the appeal. The appeal will lie only through a procedural right flowing from the appeal of the Secretary of State or the statutory provision of Tribunal jurisdiction.

The procedural argument

Mr. Walsh contended strongly that once the Secretary of State had appealed on any ground it was open to the appellant to challenge any finding that a third country was safe. The power of the Secretary of State to appeal from a decision that a country is not safe or from a decision that a matter should be reconsidered stems from the simple fact that the appeal under section 20 of the 1971 Act (applied to the 1993 Act) is not excluded by schedule 2 of the 1993 Act. The exclusion of the right to seek an appeal to the Tribunal is limited to an appeal from a decision by an adjudicator that the claim is without foundation (schedule 2, paragraph 5).

A respondent's right of appeal

Mr. Walsh cited provisions of rule 5 of the Rules of the Supreme Court by which a respondent to an appeal may raise matters on an appeal against the decision in the respondent's favour. Unfortunately for Mr. Walsh there are no such provisions in the procedure rules applicable to this case (or indeed to any other case before the Tribunal).

The Tribunal has held that the appeal process under the 1971 Act is focused on issues rather than determinations as a whole and therefore although the Home Office has succeeded in the appeal before an adjudicator it can appeal on any issue which it has lost. Similarly (and this may be more arguable) an appellant who has lost a case on more than one issue may appeal on one of the issues and not on all. Most of such cases have arisen in the context of marriage where an appeal has or has not succeeded before the adjudicator on primary purpose grounds and been lost on other grounds and one or the other parties wishes to challenge only the finding on primary purpose.

The Tribunal has also held that where a respondent seeks to appeal against a finding of an adjudicator, that requires the consideration and grant of leave to appeal. In other words the approach treats the respondent as an applicant in respect of that part of the decision against which appeal is sought. The appeal process is therefore one based on cross-appeals rather than rights of appeal of respondents which would avoid the requirement of leave.

The foundation for that approach however is the ability of the person to appeal against the determination in respect of the issue involved. The 1993 Act removes that entitlement from an applicant where an adjudicator has agreed with the Secretary of State's view as to the safety of a third country.

Statutory jurisdiction (section 20 of the 1971 Act)

Under section 20 the Tribunal "may affirm the determination of the adjudicator or make any other determination which could have been made by the adjudicator". That provision is expressly subject to provisions as to any requirement of leave, and there is no type of case in which an appeal may be brought from adjudicator to Tribunal without leave. Implicit in the provision is therefore the qualification "concerning any matter before the Tribunal". It would be curious in the extreme if the statutory exclusion of the power to seek leave were to be the foundation of the ability to bring an issue before the Tribunal where no leave had or could be granted. In the context of the appeal process as a whole we are unable so to construe section 20. It follows that Mr. Walsh cannot rely on section 20 as a route to the consideration of the third safe country, when that matter is not before us through an appeal by the Secretary of State concerning it.

The appeal is allowed in that we declare:

(i)Neither an adjudicator nor the Tribunal has jurisdiction to consider the policy of substantive consideration of the respondent's asylum claim.

(ii)The Tribunal has no jurisdiction to consider whether France is a safe country.

Appeal allowed

Solicitors for the respondent: Sri Kanth & Co, London


 

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