Meflah v. Secretary of State for the Home Department

MEFLAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
Professor D. C. Jackson (Chairman), Ms J Chatwani (Vice-President), Mr A. F. Hatt (Vice-President)
9 July 1997

Asylum - Certification pursuant to Sch 2, para 5(5) to the Asylum and Immigration Appeals Act 1993 - Jurisdiction of Immigration Appeal Tribunal to review certification - Whether Secretary of State is obliged to refer to Sch 2, para 5(5) to the 1993 Act when certifying a case in which appellant had not asserted torture - Whether Secretary of State's representative can amend a certificate during appeal process - Exercise of power to determine an appeal without a hearing due to failure to comply with directions - Asylum Appeals (Procedure) Rules 1996, rr 24(1), 35(1)(e) The Secretary of State, by a letter dated 6 November 1996, refused the appellant's application for asylum and purported to certify the claim under Sch 2, para 5 to the Asylum and Immigration Appeals Act 1993, thereby purporting to remove the applicability of s 20(1) of the Immigration Act 1971.1[1] The Secretary of State's decision letter stated that para 5(3)(b) applied to the claim but did not refer to para 5(5). On 27 November 1996 'standard form' directions were issued to both parties by a special adjudicator. The directions required the appellant, inter alia, (a) to indicate if he wished to adopt his asylum interview as his evidence, (b) if not, to file a statement of evidence, (c) to file a paginated and indexed bundle of all the documents on which he sought to rely on in the hearing, and (d) unless he was unrepresented, to file a skeleton argument. On 3 December 1996 the hearing was adjourned because the appellant's representative had only received notice of the appeal hearing one day earlier. The matter subsequently came before a special adjudicator on 17 December 1996. At the commencement of the hearing the Secretary of State's representative amended the refusal letter by inserting a reference to the non-applicability of para 5(5). The special adjudicator, after upholding the Secretary of State's certificate, then proceeded to determine the appeal without a hearing pursuant to r 35(1)(e) of the Asylum Appeals (Procedure) 1996 because the appellant had (a) failed to provide a paginated bundle of documents and authorities, (b) failed to indicate whether he wished to adopt his interview as his evidence, and (c) failed to provide a proof of evidence. The appellant appealed to the Immigration Appeal Tribunal. Held - allowing the appeal - (1)A determination of a special adjudicator upholding a certificate of the Secretary of State issued pursuant to Sch 2, para 5 to the 1993 Act, may be reviewed by the Tribunal if the asylum application did not in law amount to a certified claim. (2)Where an asylum claim has been certified under Sch 2, para 5 to the 1993 Act and the appellant has not asserted that he had been tortured in the past, the Secretary of State was nevertheless obliged, at the time of his decision, to specify that para 5(5) did not apply. Accordingly, as the defect could not be cured by means of an amendment, the appellant's asylum claim had not been certified in accordance with the 1993 Act.

Secretary of State for the Home Department v Salah Ziar followed.

(3)Where both the appellant and his representative are present at a hearing, a special adjudicator should exercise extreme caution before deciding to determine an appeal without a hearing because of a failure to comply with directions issued pursuant to r 23 of the 1996 rules. In the instant case, the non-compliance did not go to any essential part of the appeal. The appeal did not involve a large amount of documentary evidence and such documentary evidence as there was, was mainly paginated. Nor could the omission of a declaration as to whether the appellant was adopting his interview as his evidence and the lack of a statement possibly provide grounds for denying the appellant the opportunity of presenting his case. The course taken by the special adjudicator was accordingly unsustainable and a misuse of the power conferred by the 1996 rules. Statutory provisions considered Asylum Appeals (Procedure) Rules 1996 (SI 1996/000), rr 23, 24 Asylum and Immigration Appeals Act 1993, Sch 2, para 5 Asylum and Immigration Act 1996, s 1 Case referred to in judgment Secretary of State for the Home Department v Salah Ziar [1997] INLR 221, IAT Mr F. Khan for the appellant Mr P. Graham (Home Office Presenting Officer) for the respondent PROFESSOR D.C. JACKSON (CHAIRMAN): The appellant, a citizen of Algeria, appeals against the decision of an adjudicator (Mrs F. C. Bremner) dismissing his appeal against the giving of removal directions as an illegal entrant. The appellant claimed asylum. We heard this case immediately following the arguments in five other cases which raised some of the issues before us in the present case. The five other cases: Salah Ziar (CC/50473/97) Raja Mohammad Saleem (CC/50040/96), Charan Singh (CC/50193/97), Chaudhary Mohammad Naseer (CC/50041/96) and Piara Duley (CC/50047/96) were all decided by an adjudicator other than Mrs Bremner - Dr H. H. Storey. Dr Storey refused to consider the substantive claims on the basis that the Secretary of State had purported to certify these cases under Sch 2, para 5 to the Asylum and Immigration Appeals Act 1993 as amended by s 1 of the Asylum and Immigration Act 1996 but had failed to comply with statutory requirements. The Secretary of State was granted leave to appeal in all the cases and the Tribunal considered the criteria for certification and the approach an adjudicator should adopt where the adjudicator disagrees with the certificate either because of defective procedure of certification or because of disagreement with the existence of an appropriate ground for such certification. The Tribunal set out its reasoning and conclusion in Secretary of State for the Home Department v Salah Ziar [1997] INLR 221 and applied that reasoning to the other cases. In the present case the adjudicator did not disagree with the certificate of the Secretary of State but one central issue is whether the claim amounts in law to a certified claim. If so, and if the adjudicator agreed with the certificate, there is no appeal to the Tribunal (para 5(7)). If the claim is not certified or the adjudicator did not so agree, the Tribunal may review the adjudicator's determination and her approach to the case. Apart from the issue of certification a particular point raised is the justifiability of determining the appeal without a hearing.

The background to the case

The appellant, a citizen of Algeria, entered the UK on a forged identity card on 13 August 1996. He applied for asylum on 20 August 1996 and the basis of his asylum application was subsequently submitted by his solicitors. He said that terrorists demanded a ransom from him which he refused to pay. The same day they threatened his whole family and afterwards killed his mother. In his asylum interview he elaborated on this saying that his problems started in August 1995 when he refused to give the terrorists money and he was given several warnings by them. On 25 December 1995 they came to his house, he was not at home, his mother refused to talk to them and they killed her. The appellant said that he had reported the terrorists' demands to the police, who did nothing but simply asked him to bring the people to them. Later in his interview he said that he had only reported to the police about his mother and not about anything else. The men had left him a threatening message in February 1996, and in July 1996 he had decided to leave because he was scared. The reasons for the refusal letter (dated 6 November 1996) recounted the appellant's story and concluded that there was no evidence to support a claim that the Algerian authorities were either unwilling to or had failed to take steps to protect its citizens. Further it was observed that the appellant had never been arrested or detained by the authorities and that although the death of his mother had occurred in December 1995 he had remained in Algeria until July 1996. Failure to apply for asylum in countries through which he had passed was inconsistent with the actions of a genuine refugee and the delay in applying for asylum in this country cast considerable doubts on the credibility of the evidence which had been presented. The letter concluded:

'(9)In the light of all the evidence available to him, the Secretary of State has concluded that you had not established a well-founded fear of persecution and that you do not qualify for asylum. Your application is therefore refused under para 336 of HC 395. The Secretary of State also certifies your application under para 5(3)(b) of Sch 2 to the 1993 Act (as amended) owing to your failure to declare to the Immigration Officer on arrival that your travel documents were not valid. This means that if you choose to exercise your right of appeal it will be subject to the accelerated appeal procedure.'

By notice dated 12 November 1996 the appellant appealed. By notice dated 27 November 1996 the date for the hearing was set as 3 December 1996 and directions given to both parties by Mr H.J.E. Latter in (apparently) a standard form. Obligations imposed on the appellant included (i) at least 3 days before the date of hearing to file a 'paginated indexed and wholly legible bundle of all documents' on which the appellant sought to rely at the hearing, and (ii) unless unrepresented the filing of a skeleton argument at least 3 days before the hearing. The respondent was directed to file any further documents on which it was sought to rely at the hearing. It is stated in the directions that in the event of the party failing to comply the special adjudicator might treat that party as having abandoned the appeal, the decision appealed against as having been withdrawn or determine the appeal without a hearing pursuant to r 35 of the Asylum Appeals (Procedure) Rules 1996. The hearing was listed before the adjudicator on 3 December 1996. The appellant's representative, a presenting officer and an interpreter were present. It is not clear if the appellant was present. The matter was adjourned to 17 December 1996 on the application of the appellant's representative, he having received notice only on the day prior to the hearing. It is as well to set out in full the record of proceedings before Mrs Bremner on 17 December 1996. On that occasion the appellant, the appellant's representative, a presenting officer and an interpreter were present.

'Mohammad Meflah - Algeria - certified case.

Are you conceding the certificate - no.

Not disputing that came in on forged documents - no.

On what basis not conceding the certificate - was referring to the asylum issue.

That's a different issue isn't it - yes.

Just approaching from office, need to amend the certificate to show that the para relating to torture does not apply.

Adj: alright well, do I take it that it is conceded that the case has been correctly certified - yes.

Adj: directions were given - yes.

Adj: have not been complied with, no docs and no statement or election that accepting interview as evidence. So why should I not deal with it r 35? - initially A not going to be able to pay for representation, were going to do it as McKenzie friend but then able to pay and only determined yesterday.

Wd get paid for preparation under green form would you not - yes for preparation.

Anything else you can say - no.

Background docs - Mr Pile has none.

Mr Ralph - I was aware I had failed to comply, I didn't get the file, so I have not got background.

Adj: that's not going to be good enough though is it. I have been saying this for months to the SoS's reps in these hearing rooms that he is going to have to get his act together and make some proper arrangement.

Mr Ralph - I fully acknowledge that and will minute the file accordingly.

Explaining in full to the appellant. I have read the file and know what your claim is all about. The Secretary of State has certified your case and it has been conceded that it has been correctly certified because you used forged docs to enter the UK.

The rules of procedure provides for the giving of directions in preparing the appeal which must be complied with. Only half of the directions given in this case have been complied with. There are sanctions among which are that 1 May deal with the appeal without a hearing and that is what I intend to do in your case.

You will be notified of my decision in due course at the address on the file. Thanked for attendance and released.'

In her determination the adjudicator referred to the question of certification:

'The Secretary of State's certificate can be displaced if I find that the appellant did not produce a passport which was not in fact valid and fail to inform the officer of that fact on arrival. In this case the appellant acknowledged that he had produced such a document and it was specifically confirmed by his representative that he did not contest the fact that the appeal had been correctly certified.'

As to the adjudicator's decision of the appeal without a hearing she said:

'The appeal came before a special adjudicator for pre-hearing review on 3 December 1996 and directions were given under r 23 of the Asylum Appeals (Procedure) Rules 1996 and when the matter came before me not all the directions had been complied with, there being no paginated bundle of documents and authorities relied on, no indication that the appellant was adopting his interview as his evidence and no proof of evidence. Having regard to r 24 of the 1996 rules I invited Mr Pile to address me as to why I should not deal with the appeal without a hearing under r 35(e). He said that he had not known until the previous day the appellant would be able to pay for representation at the hearing and it had been anticipated that he would have been attended by Mr Pile as McKenzie friend. I was of the view that representation at the hearing was not a matter which would affect the preparation in advance of the hearing which would be covered by Green Form legal aid, and Mr Pile did not disagree with that proposition. He was unable to put forward any other reason for which I should not determine the appeal under r 35. That position was explained to the appellant and he was released.'

The adjudicator then reviewed the evidence before her and concluded that she was not 'inclined to believe anything he has said which is material to his claim' or that he had a subjective fear. The adjudicator dismissed the appeal.

The jurisdiction of the Tribunal

The Tribunal has jurisdiction only if the claim is not certified or the adjudicator has not agreed with the certificate of the Secretary of State.

The legislative framework

The critical statutory provision is Sch 2, para. 5 to the Immigration Appeals Act 1993 as amended by s 1 of the Asylum and Immigration Act 1996. That provision reads: '(1)This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which-

(a)sub-paragraph (2), (3) or (4) below applies; and

(b)sub-paragraph (5) below does not apply.

(2)This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution. (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 either -

(a)he failed to produce a passport without giving a reasonable explanation for his failure to do so; or

(b)he produced a passport which was not in fact valid and failed to inform the officer of that fact.

(4)This sub-paragraph applies to a claim 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)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;

(c)it is made at any time after the appellant -

(i)has been refused leave to enter under the 1971 Act,

(ii)has been recommended for deportation by a court empowered by that Act to do so,

(iii)has been notified of the Secretary of State's decision to make a deportation order against him by virtue of section 3(5) of that Act, or

(iv)has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act;

(d)it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false, or

(e)it is frivolous or vexatious.

(5)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 or territory to which he is being sent. (6)Rules of procedure under section 22 of the 1971 Act may make special provision in relation to appeals to which this paragraph applies. (7)If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is one to which -

(a)sub-paragraph (2), (3) or (4) above applies; and

(b)sub-paragraph (5) above does not apply,

section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.

(8)The first order under this paragraph shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament. (9)A statutory instrument containing a subsequent order under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament. (10)In this paragraph -

"immigration officer" means an immigration officer appointed for the purpose of the 1971 Act;

"passport", in relation to an appellant, means a passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship.'

In Salah Ziar the Tribunal held at 238D-239A:

'(1)Agreeing with the adjudicator) for a case to be certified the Secretary of State must specifically refer to one of sub-paras 5(2), (3) or (4) and (5).

(2)As the requirement of the statute is clearly based on the consideration by the decision-taker of whether a claim is to be certified and as the certification may fundamentally affect (in some cases) the giving of notice of appeal and in all cases the adjudicator's approach and the ability of the appellant to prepare the case any defect in the certification procedure cannot be cured by amendment.

(3)
(a)An adjudicator considering whether the certification procedure has been complied with should do so at the start of the case, and in considering whether or not to disagree with the certificate the adjudicator should where possible decide the certificate issue either separately or early in the proceedings.
(b)The burden and standard of proof on appeal as regards the substantive claim does not vary whether the claim be certified or non-certified. The burden of showing that the claim is certified rests on the Secretary of State and the standard of proof in regard to paras 2, 3 and 4 is the balance of probabilities always bearing in mind the seriousness of the issue. The standard as regards para 5(5) is that set out in the statute and imposes on the Secretary of State only the burden of adducing the evidence before the adjudicator that was before the decision-taker and on which it has been concluded that there is no reasonable likelihood of torture.

(4)Where an adjudicator either finds that a case was not certified in compliance with the statutory requirements or disagrees with the certificate there is no power simply because of that view to refer the matter back to the Secretary of State, that power being no different to any other case; rather the case must normally remain for consideration of the substantive claim at appellate level but the adjudicator must consider (and so state) whether the erroneous classification has affected the nature and presentation of the applicant's case to a degree justifying an adjournment.

(5)The 1996 amendment of Sch 2, para 5 applies to asylum applications made prior to as well as after the date of coming into operation of that amendment.'

There is no assertion by the applicant that he was tortured. Nevertheless for the reasons given in Salah Ziar the obligation to specify para 5(5) remains. The purpose of that provision is not to leave it to the adjudicator to decide whether or not there was any or any adequate evidence of torture for the claim to be certified but to impose on the decision-taker an obligation specifically to consider the matter and express an opinion on it. It follows that in this case the decision was not certified in accordance with the statute and again for the reasons given in Salah Ziar that defect could not be cured by an amendment. We hold therefore that the Tribunal has jurisdiction to consider the appeal. In these circumstances it is unnecessary to consider whether the adjudicator agreed with the certificate.

The consideration of the appeal by the adjudicator without a hearing

As the adjudicator said, by virtue of r 24 of the 1996 rules power is conferred on an adjudicator to determine an appeal without a hearing where there is a failure to comply with a direction given under r 23. In our view however where both the appellant and the representative are present at a hearing an adjudicator should exercise extreme caution before deciding to determine an appeal without a hearing because of failure to comply with directions. In the present case the failure did not go to any essential part of the case and the course taken by the adjudicator is unsustainable. This is not a case in which there is a huge amount of documentary evidence and such documentary evidence as there was, was itself mainly paginated. Further, the appellant and his representative being present the omission of a declaration as to whether the appellant was adopting the interview as his evidence and the lack of proof of evidence cannot possibly provide grounds for sending the appellant away without allowing him to present his case. In our view the adjudicator's action in this case was a misuse of the power conferred by the rules. Such misuse is likely to bring the power to give directions into contempt.

Consequences of our findings

Were the only matter at issue the defective categorisation it is arguable that the Tribunal itself could consider whether it could entertain the substantive appeal. However, as Mr Khan stressed the appellant has been denied a first instance hearing by the adjudicator's refusal to conduct the hearing. The fair course is for the matter to be remitted for a hearing de novo. The appeal is allowed insofar as the matter is remitted to an adjudicator other than Mrs F. C. Bremner for a hearing de novo on the basis that the appeal is not a certified claim. Appeal allowed. Matter remitted to another special adjudicator for hearing de novo. Solicitors: Annon & Co for the appellant



[1] Section 20(1) of the Immigration Act 1971 reads: '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'.

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