R v. Secretary of State for The Home Department a Special Adjudicator, Ex parte Nargis Chowdry

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CARNWATH J)

2 February 1998

Before:

THE MASTER OF THE ROLLS (LORD WOOLF)

LORD JUSTICE POTTER

In an application for Judicial Review

LORD JUSTICE MAY

REGINA - v - THE SECRETARY OF STATE FOR THE HOME DEPARTMENT A SPECIAL ADJUDICATOR EX PARTE NARGIS CHOWDRY

1. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

2. A SPECIAL ADJUDICATOR EX PARTE NARGIS CHOWDRY

MR D PANNICK QC and MISS L GIOVANNETTI (Instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Appellant

MR P CRAMPIN QC and MISS B MCVAY (Instructed by Messrs Saleem Sheik, London, SW1V 1RY) appeared on behalf of the Respondent

JUDGMENT

LORD WOOLF, MR:

This appeal raises an issue as to the effect of the Asylum and Immigration Act 1996, when it came into force on 21 October 1996, on a claim for asylum which was made prior to that date but which was decided by the Secretary of State after that date.

This is a test case because it affects a number of other asylum seekers. Through the very helpful arguments which have been addressed to this court both by Mr Pannick and Mr Crampin, and the admirably clear way in which the matter was considered in the court below by Carnwath J in the judgment which he gave on 16 December 1997 (because this is a test case, it has been expedited) I have no doubt as to the answer to this appeal. The outcome depends upon the correct interpretation of the legislation. The facts are of no assistance in determining the outcome the outcome so they can be summarised shortly.

The respondent comes from Pakistan. She arrived in the United Kingdom on 10 December 1995 and claimed asylum. She had converted to the Ahmadi faith three years earlier. As a result, she contended, she had been persecuted. The respondent's claim to asylum was rejected by the Secretary of State by a notice dated 18 April 1997 which referred to a decision letter dated 18 February 1997. She appealed to a special adjudicator as she was entitled to do. Her appeal was rejected on 11 October 1997. Neither she, nor her representative, attended the hearing, but the special adjudicator considered the merits of the appeal. If the Secretary of State is right in his interpretation of the legislation, the respondent had no further right of appeal to the Immigration Appeal Tribunal, but she still would retain her right to apply for judicial review. It was as a consequence of that application that Carnwath J gave his decision. He decided the matter in the asylum seeker's favour. It is from that decision that the Secretary of State appeals to this court.

In order to understand the points in issue, it is convenient to look at the relevant legislation commencing with the Asylum and Immigration Appeals Act 1993. That Act assisted those seeking asylum. Section 2 stated that:

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

In Section 8 of that Act there were provisions as to appeals by persons who wished to contend that they were entitled to the benefits of the Convention in relation to asylum seekers. As defined in Section 1 of the 1993 Act "the Convention" means:

"....the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention."

Section 8(1) provides:

"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."

The Section improved the position of an asylum seeker who is refused leave to enter, because it contains no requirement to leave the United Kingdom before an appeal can be heard. Subsection (2) deals with the position of a person who has limited leave under the 1971 Act, but is refused a variation of that leave. The right of appeal is to a special adjudicator alleging that to remove such an applicant would be contrary to the United Kingdom's obligations under the Convention.

There are similar provisions in subsection (3) where the Secretary of State had decided to make a deportation order or refused to revoke a deportation order. Subsection (4) deals with a situation where directions have been given for a person's removal from the United Kingdom. Again, that person can rely on the fact that, for him to be removed, would be contrary to the United Kingdom's obligations under the Convention.

Section 8(6) provides that:

"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."

There is no dispute that Section 8 would apply to give a right of appeal where no such right previously existed, albeit that the claim which was to be the subject of the right of appeal had been made before the 1993 Act came into force. If there was any doubt about that matter, it was removed because Section 1 contains a definition of claim for asylum as follows:

"'Claim for asylum' means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom."

Although in general Section 8 was favourable to someone who was claiming to be treated as a person entitled to the benefits of the Convention, that claim was restricted by the provisions of Schedule II, paragraph 5, as it was then enacted. Paragraph 5(1) provided that:

"Subject to sub-paragraph (2) below, this paragraph applies to an appeal by a person under subsection (1), 3(b) or (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 the United Kingdom is without foundation."

Paragraph 5(4) provides for what has become known as the "expedited procedure". It reads:

"Rules of procedure under section 22 of the 1971 Act may make special provision in relation to appeals to which this paragraph applies."

The expedited procedure, which is dealt with in the rules, restricts the time limits in which an appellant may pursue his or her appeal.

Paragraph 5(5) provided:

"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."

The effect is to cut down the right of appeal if the special adjudicator agrees that the claim is without foundation.

The Asylum and Immigration Act 1996 amends and supplements the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993. It makes further provisions with respect to persons subject to immigration control and the employment of such persons, and for connected purposes. One of its objectives was to enable this country to deal more expeditiously and effectively with the large number of claims which were being made by asylum seekers. The headnote to Section 1 of the Act, reads "Extension of special appeal procedures". It applies the special procedures, which were contained in the former Schedule II paragraph 5 of the Asylum and Immigration Appeals Act 1993, to a wider range of situations. Section 1, which is the critical Section requiring interpretation on this appeal, provides:

"For paragraph 5 of Schedule 2 to the Asylum and Immigration Act 1993 ('the 1993 Act') there shall be substituted the following paragraph '5-(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."

It therefore applies to the same four situations, referred to in Section 8, as the original paragraph 5.

Paragraph 5(2) provides:

"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."

Subparagraph (2) is relevant in relation to the respondent to this appeal because Pakistan, the country from which he came, has been designated in an order made by the Secretary of State under the 1996 Act. It will be appreciated that unless and until the Secretary of State had designated a country in an order referred to in that paragraph, that part of the paragraph would have no operation. As the power to make an order under that paragraph would only come into effect after the Act came into effect, there is no question of any retrospective designation of a country as being one in which there is no serious risk of persecution.

Paragraph 5(3) is not directly relevant on this appeal, but its contents are of interest in that it sets out a variety of situations where the expedited procedure could apply and there could be no further right of appeal to the Tribunal. Among those there are, for example, a failure to produce a passport without giving a reasonable explanation; an application which is manifestly fraudulent, frivolous or vexatious; the similar situations to that in the previous paragraph 5 where the claim could be regarded as being without foundation.

Subparagraph (5) provides:

"This subparagraph 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 to be sent."

That provision could be of benefit to an asylum seeker because the procedure referred to in paragraph 5 would then not apply because one of the matters which has to be certified by the Secretary of State in accordance with paragraph 5(1) is that that subparagraph has no application. Subparagraph (6) has a similar provision with regard to rules of procedure as was contained in the previous paragraph 5. Subparagraph (7) provides:

"If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is one to which-

(a) sub-paragraphs (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."

If you have a certificate by the Secretary of State which is upheld by the special adjudicator, there is no further right of appeal. In the case of the respondent to this appeal, there was such a certificate by the Secretary of State which was upheld by the special adjudicator.

Paragraph 5(8) requires the first order under the paragraph to be laid before Parliament and approved by a resolution of each House of Parliament. In view of the language used in Section 1 of the 1996 Act, my immediate reaction would be to regard the new paragraph 5 as applying to the appeals after the Act came into force irrespective of the date on which the claim for asylum was made. That approach would accord with the approach of the 1993 Act and with the new paragraph 5, contained in the 1996 Act, being inserted into the 1993 Act.

That reaction is strongly confirmed, so far as I am concerned, when one comes to look at Section 2 of the 1996 Act which has no direct relevance to this appeal. Section 2 contains a new procedure for removing asylum claimants to safe third countries, that is a country which is not the country from which they originally arrived in this country, but an intermediate country which they had originally entered prior to entering this country. This Section provided for an expedited procedure which is contained in Section 3 of the same Act, particularly in relation to appeals. It gives a restricted right of appeal. Section 2 undoubtedly cuts down the rights of an asylum claimant. However Section 2(7) expressly provides that a claim for asylum has the same meaning as in the 1993 Act. Having regard to the express inclusion of the definition of a claim for asylum contained in the 1993 Act into Section 2, I can only interpret Parliament's intention, in relation to the interpretation of Section 2, as being to make it applicable to claims for asylum made prior to the coming into force of the 1996 Act, subject to the Secretary of State having previously certified as required by Section 2(1).

If that is the position with regard to Section 2, then it would be extraordinary if Section 1 was to have a different effect from Section 2. I am not sure whether that was a point which was drawn to the attention of the judge in the court below, because it does not appear from his judgment that he took it into account. In my judgment it is a strong pointer as to the correct interpretation of the Section 1 with which this appeal is concerned.

In Section 1, there is no reference to the interpretation of a claim to which that paragraph refers. The new paragraph 5 does not use the words "claim for asylum", but it is readily understandable why that should be the situation. The new paragraph 5 is being inserted into the 1993 Act. As that act already contains a definition of the claim for asylum in the terms to which I have referred, it would be unnecessary to have something equivalent to Section 2(7). Section 2(7) is required because Section 2 covers a situation which had not previously been dealt with in the 1993 Act.

In determining that the claim of the respondent was not subject to the amendment made by the 1996 Act, the judge was influenced by the fact that he thought the language of the 1996 Act was unclear. He considered it would be unfair to apply the 1996 Act retrospectively and took the view that, to apply the Act to a claim which had not been determined at the date when the new Act came into force, would be to give that Act a retrospective application.

The basis upon which he thought it would be unfair so to do, was set out in terms which have been criticised by Mr Pannick. The judge said in his judgment:

"In so far as fairness comes into the matter in this case, I think it helps the applicant. It would be unfortunate if the applicant were to be made subject to a more restrictive regime simply as a result of the Department's delay in handling the matter. Indeed, there seems something inconsistent in seeking to apply a new fast-track procedure to a case which, through no fault of the applicant, has already taken over a year to get to the first hurdle. This is no criticism of the Department, since I am well aware of the burden they have, but it would be unfortunate if that burden prejudiced the claimant."

Mr Pannick submits that that paragraph should not have assisted the judge in reaching his conclusion. The interpretation of the 1996 Act does not depend upon the particular circumstances of a particular applicant. He submits, correctly in my judgment, that if the applicant had had her application dealt with extremely expeditiously but she fell on the wrong side of the line, the result would have been exactly the same. The fact that her application was not dealt with expeditiously could not affect the proper interpretation of the 1996 Act.

The question of unfairness is of significance because if an Act is retrospective it is necessary to have regard to whether it is fair or unfair for it to have that application. In passing legislation, Parliament can be assumed not to intend to produce results which are unfair, therefore unless Parliament makes it clear that a result which is unfair was an intended result, the courts will assume that that unfair result is not the one that Parliament intended. If Parliament makes it clear that its intention is to produce a result which it may or may not acknowledge is unfair, then courts have to give effect to that intention.

The same approach has been traditionally adopted by these courts for many years. In the past the approach was achieved by distinguishing between changes which affected substantive rights of an individual and changes which were only procedural in effect. Generally, the view was taken that if the only effect was procedural, then there would be no unfair taking away of the individual's rights. If the changes were only procedural it was readily to be inferred that Parliament intended them to have effect forthwith once the legislation was passed. This was so even if, for example, procedures had already commenced prior to the Act coming into force. If on the other hand the situation was one where there were substantive rights which would be affected by the change, to take them away retrospectively would in ordinary circumstances not be regarded as a situation which Parliament would have intended to bring about. It was for that reason that it was said in such a situation that there was a presumption against retrospectivity.

The well-known division between procedural and substantive changes did have a draw back. It was often difficult to determine whether a change made in the law was properly to be regarded as procedural or substantive. Because of the problems this could create, which would could involve a court having to find its way through a maze of previous decisions, the emphasise over recent years has changed. The source of that change is to be found in a decision of Staughton LJ in the case of the Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712. In a judgment which has frequently been cited since that time, Staughton LJ, at page 724f, identified this principle:

"Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."

Similar remarks to those of Staughton LJ can be seen in the speech of Lord Mustill in the case of L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486. That case was concerned with an arbitration where the problem as to the possible retrospective effect of the Arbitration Act l950, as amended by the insertion of a new Section 13A, was under consideration. The arbitrator had adopted the approach of simply saying that, because the new Section 13A had been inserted into the Arbitration Act 1950, it must be regarded as having a retrospective effect. Lord Mustill pointed out that the attractive simplicity of that argument did not mean that it could be accepted. He considered in detail the proper approach to the interpretation. He made it clear that the advantage of the approach laid down in the Tunnicliffe case is that it avoids having to solve the problem in a mechanistic way. At page 525 he added:

"Precisely how the single question of fairness will be answered will depend on the interaction of several factors, each of them capable of varying from case to case. Thus the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say."

In that passage Lord Mustill summarises what I, in current circumstances, would suggest is the appropriate approach to adopt in relation to the interpretation of statutes when a question of retrospectivity arises. A similar approach to that indicated by Lord Mustill was also adopted by the House of Lords in Plewa v Chief Adjudication Officer [1995] 1 AC 249 in a speech for which I was responsible.

In support of his contention that this appeal should be allowed, Mr Pannick divided his arguments as to the 1996 Act under three heads: (i) language of the legislation, a matter with which I have already dealt; (ii) the purpose of the legislation, to which I have also referred, the intention of Parliament being to assist in dealing with the problem of the number of outstanding claims by asylum seekers; (iii) the issue of unfairness.

As to the issue of unfairness, Mr Pannick submitted that there is no question of unfairness arising from what he would contend is the appropriate approach to adopt to Section 1 of the 1996 Act. He submits that, until a claim has been determined by the Secretary of State in the first instance, it cannot be said that there is any unfairness to a claimant in changing the position in relation to appeals as in this particular case. Mr Pannick points out that, although one consequence of the change is that the claimant will not have a right to appeal to the Immigration Appeal Tribunal and then, on a point of law, to the Court of Appeal, the claimant would, as this case illustrates, still have the opportunity, before bringing a case before this court, to have an intervening "right of appeal" in the form of an application for judicial review.

He also submits firmly, that, until the claim has been dealt with by the Secretary of State, it cannot be said that any right to appeal has crystallised. Carnwath J was much influenced by the approach of the Privy Council in The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369. That case arose out of the removal of the right of appeal to the Privy Council when a case was pending, having been commenced before the change in the law. The legislation took away the right of appeal to the Privy Council and substituted for that right a right of appeal to the High Court of Australia. At 372 Lord MacNaghten said:

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

Mr Pannick points out that the situation under consideration here differs from that being considered by the Privy Council. What happened here before the Act came into force was not merely the initiation of legal proceedings but a claim by the applicant to be entitled to asylum. She was seeking an administrative decision from the Secretary of State. The 1996 Act had an effect upon the applicant's rights of appeal, but, submitted Mr Pannick, that could only be of consequence once she was aware of the Secretary of State's decision.

Mr Pannick also draws attention to the fact that this court in a judgment of Greer LJ took a different view from that indicated by Lord MacNaghten in the case of Theo Conway v Henwood (1934) TLR 474. More importantly, he relied upon the judgment of Bingham LJ in the case of R v Secretary of State for the Home Department, ex parte Mundowa [1992] 3 All ER 606. That was a case in which this court again was concerned with questions of retrospectivity of legislation. At page 616 Bingham LJ said:

"I do not think that it is very fruitful to discuss whether the section is retrospective in its operation or not, because the presumption against retrospectivity can only apply where the statutory intention is not plain, and here I think it is. Plainly, on my construction, some of the events to which the section has regard may have occurred before the section comes into force, for example the granting of leave to enter, or the overstaying or breach of condition. But a person cannot have an accrued right of appeal until he has a decision to appeal against, which he cannot do until he is notified of a decision. For better or worse - and the court is not an arbiter of what the United Kingdom's immigration policies should be - the draftsman has distinguished between those who have and those who have not received notice of the decision to deport, between those who have and those who have not an accrued right of appeal. This distinction seems to me intelligible and readily workable and, most importantly, to be that which the draftsman plainly intended."

Those words reflect an approach which is extremely relevant to this particular case. I have already indicated that the language of Section 1 of the 1996 Act is clear in its operation. The judgment of Bingham LJ deals with way I would approach the question of accrued rights in this context. The question of when a right accrues is given added significance through the provisions of Section 16(1) of the Interpretation Act 1978, which again may not have been drawn to the attention of the judge because he does not deal with it in his judgment. Section 16(1) provides that, unless the contrary intention appears, the repealed enactment does not:

"(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment."

or,

"(e) affect any investigation, legal proceeding or any such right, privilege, obligation, liability, penalty, forfeiture or punishment."

If no right accrues to a claimant until the claim is determined by the Secretary of State, then it would be in accord with Section 17 of the Interpretation Act l978 to regard the proper approach to the application of Section 1 of the 1996 Act as having an effect after the claim has in the first instance been determined by the Secretary of State and not before. That is the appropriate stage at which to draw the line giving effect to the 1993 Act before and after it was amended. It fits in with what would otherwise be a problem and what the position would be if there has been no certificate under the new paragraph 5 before the Secretary of State determined a claim.

The Secretary of State's practice, as I would have expected, is to deal with the question of a certificate under the amended paragraph 5 when disposing of a claim. Unless the Secretary of State has certified under the amended paragraph 5, there is no possibility of the amended paragraph 5 having an effect because the Secretary of State has to have certified before the special adjudicator can confirm that certification and so bring paragraph 5, in its amended form, into effect so as to exclude a right of appeal.

But for that difficulty, it might be possible to regard the line as being drawn at an earlier stage, but it seems to me that would not be a possible result because of the double certification requirement under the amended paragraph, which was also in a different form, required under the previous paragraph 5. If it was a case where the matter had been dealt with in reaching his decision by the Secretary of State in the form of the unamended paragraph 5, if either paragraph 5 was to have an effect it must be the preceding paragraph 5.

The Secretary of State is in a position to select which procedure he would adopt (either that under the former paragraph 5 or the new paragraph 5) before he comes to his decision. In this case he correctly made his decision on the basis of the new paragraph 5. If he had made his decision on the basis of the old paragraph 5, he could not by so doing change the date of the operation of the new Act, and that certificate then would be of no effect if the new Act was already the relevant Act which had to be complied with. In giving a decision, if he has relied on the provisions which are bought into effect by the new Act and his decision is one which is made after the Act has come into operation, I can see no reason why, on the proper interpretation of the new paragraph 5, that paragraph should not apply to the decision in any appeal which takes place thereafter.

For those reasons I would allow the appeal and set aside the order made by Carnwath J. I would welcome argument, assuming that my Lords agree with the views that I have expressed, as to what should be the appropriate order.

LORD JUSTICE POTTER:

I agree.

LORD JUSTICE MAY:

I agree.

Order:

Appeal of respondents allowed setting aside the order of Carnwath J. Legal Aid Taxation of Appellant's costs of appeal.

Respondents to pay Appellant's costs of appeal. No order for costs in court below.

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