R v. Special Adjudicator, Ex parte Alves Paulino; R v. Special Adjudicator, Ex parte George Edoukou

R v SPECIAL ADJUDICATOR ex parte ALVES PAULINO;
R v SPECIAL ADJUDICATOR ex parte GEORGE EDOUKOU

13 October 1995

Queen's Bench Division: Divisional Court
Rose LJ, Wright J

Political asylum-applications characterised by Secretary of State as frivolous-whether if a claim, however incredible, raised an issue under the Convention it could be characterised as frivolous-the courses open to a special adjudicator when hearing an appeal under section 5(3)(b) of the 1993 Act. Asylum and Immigration Appeals Act 1993 sch. 2 paras. 5(3)(a), 5(3)(b), 5(6): RSC 0.18 r. 19. UNHCR Handbook on procedures and criteria for determining refugee status (1979) paras. 169-171.

Judicial review of dismissal by special adjudicators of political asylum appeals in which the Secretary of State had characterised the applications as frivolous under paragraph 5(3)(b) of the second schedule to the 1993 Act.

Counsel argued that giving "frivolous" its ordinary meaning a claim for asylum could only be so characterised if it did not engage the Convention, irrespective of the credibility of the applicant's account. If the claim, were the applicant to be believed, did engage the Convention, it could not properly be characterised as frivolous. For the Secretary of State it was argued that the special adjudicator, who could hear evidence from the applicant, would be entitled to dismiss the appeal even if the Convention were engaged, if the appellant were found not to be credible.

In the case of Paulino the adjudicator had concluded that certain (and to some extent peripheral) aspects of the appellant's story were not credible. On that basis he bad upheld the Secretary of State's certificate that the application was frivolous. In the case of Edoukou the adjudicator had acknowledged that were the evidence put to her accepted, then an issue under the Convention would have been raised. It appeared that the certificate of the Secretary of State had been upheld without a full analysis of that evidence.

Held:

1. When hearing an appeal under paragraph 5(3)(b) of the second schedule to the 1993 Act, an adjudicator was faced with four alternatives:

1. 1The adjudicator might agree with the certificate and dismiss the appeal.

1. 2Disagree with the certificate and allow the appeal.

1. 3Disagree with the certificate and refer the matter back to the Secretary of State under paragraph 5(6).

1. 4Disagree with the certificate but nevertheless dismiss the appeal, finding that although the Secretary of State had been wrong to characterise the claim as frivolous or vexatious, nevertheless on the facts the appellant did not qualify for asylum.

2. In determining whether a claim was frivolous the adjudicator could take account of the credibility of the appellant, but it did not follow that a want of credibility on the part of an appellant itself justified the claim being characterised as frivolous. That could be the case where his account was totally incredible on matters which provided the basis for engaging the Convention, but not where the lack of credibility related to peripheral matters.

3. In the case of Paulino the adjudicator had upheld the Secretary of State's certificate eventually on the basis of an adverse finding on credibility on peripheral matters. In the case of Edoukou there was evidence which made it inappropriate for the application to be characterised as frivolous.

4. The determinations would be quashed and the cases remitted for hearing by different adjudicators.

R Scannell for the applicants

R Tam for the respondents

Cases referred to in the judgment:

Attorney-General v London and North-West Railway [1892] 2 Ch 274.

Young v Holloway [1895] P 87.

Day v William Hill (Park Lane) [1949] 1 KB 632: [1949] 1 All ER 219.

Wenlock v Moloney [1965] 1 WLR 1238: [1965] 2 All ER 87 1.

Blue Town Investments Ltd v Higgs & Hill plc [1990] 1 WLR 696: [1990] 2

All ER 897.

Pepper v Hart [1993] AC 593: [1993] 1 All ER 42.

R v Secretary of State for the Home Department ex parte Senay Mehari and ors [1994] 2 WLR 349: [1994] Imm AR 151.

R v Secretary of State for the Home Department ex parte Murida (unreported, QBD, 24 March 1994).

ROSE LJ: This is the judgment of the court. These two applicants, with the leave of the court, seek to challenge, by judicial review, a decision of a special adjudicator upholding a certificate by the Secretary of State that their claim for asylum was frivolous and, therefore, without foundation.

Central to each application is the fast track certification procedure for dealing with some claims to asylum introduced by schedule 2 to the Asylum and Immigration Appeals Act 1993. The Act refers, in section 1, to a "claim for asylum" as meaning:

"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 leave, the United Kingdom".

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".

Schedule 2, paragraph 5, is in these terms:

"(1)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.

(2)This paragraph does not apply to an appeal on the ground mentioned in subsection (1) of section 8 of this Act if, by virtue of section 13(3) of the 1971 Act (right of appeal for person with current entry clearance or work permit), the appellant seeks to rely on another ground.

(3)For the purposes of this paragraph a claim is without foundation if (and only if)

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

(b)it is otherwise frivolous or vexatious.

(5)If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, s. 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".

The provisions of paragraph 5 and, in particular, 5(3)(b) were the subject of analysis and decision by Laws J in R v Secretary of State for the Home Department ex parte Mehari and ors [1994] 2 WLR 349.

Not until Mr. Scannell, in his reply, suggested that Laws J was wrong to draw a distinction between 3(a) and 3(b) had it been suggested on either side that the decision of Laws J was other than correct. We are entirely satisfied that the analysis of Laws J of paragraph 5 of schedule 2 is correct and we adopt it.

There are certain passages in his judgment, which, it seems to us, are highly material in the present case. At page 356 just below D, having examined the structure and content of the 1993 Act and the Asylum Appeals (Procedure) Rules 1993 SI 1661, he said:

"From these materials it is at once apparent that the certification procedure is of critical significance: it conditions the time-limits, and, what is I think of much greater importance, its application determines the availability or otherwise of a further appeal to the appeal tribunal. These applications require me to construe paragraph 5 of Schedule 2, so as to ascertain the legal effects of the certification procedure as it works in practice.

In a case where the Secretary of State gives a certificate, the first task for the special adjudicator is to decide whether he agrees with it or not under paragraph 5(5) or (6) of Schedule 2. If he does agree, as in effect he did in each of these cases, that is of course the end of the appeal: the applicant has no further relevant legal rights save that he may apply for leave to move for judicial review against the adjudicator's decision. Where the adjudicator disagrees with the certificate, he must then proceed as a separate exercise to decide whether to allow or dismiss the appeal, or refer the case back to the Secretary of State under paragraph 5(6). It is also clear, as Mr. Pannick accepts, that in deciding whether to agree or disagree with the certificate the adjudicator does not apply the public law Wednesbury test, or anything akin to it, but must consider for himself whether the claim is indeed ‘without foundation' as that term is defined in paragraph 5(3) of Schedule 2".

At page 357H he went on:

"If therefore, as I have held, the certificate is to express the Secretary of State's view of the claim's overall merits, the adjudicator's agreement or disagreement with it is in principle concerned with the overall merits as well.

Moreover, I think it extremely unlikely that Parliament would have chosen to define the expression ‘without foundation' in terms so distant from its ordinary meaning as are implied by the construction which I am presently considering. The words ‘without foundation' are apt to describe a claim which after full examination has no merits, and not merely one which on the face of it is not arguable. Statute may, of course, define any expression as the legislature chooses. But if the intention in paragraph 5 of Schedule 2 was to introduce the concept of an arguable case, rather than one which in the end was either good or bad, I do not believe that the formula ‘without foundation' would have been chosen as the means of its introduction.

I should notice one particular argument mounted to contradict the proposition that under paragraph 5(5) and (6) the adjudicator is himself to decide the merits of the claim. It is to the effect that upon this construction there will be no case under 5(3)(a) of Schedule 2 in which the adjudicator both disagrees with the certificate and dismisses the appeal, since, if he disagrees with it, he will ex hypothesi have accepted the merits of the appeal: yet paragraph 5(6) would appear to contemplate that in all cases where the adjudicator does so agree, the question of allowing or dismissing the appeal involves a separate and distinct exercise. However, as I will show in dealing with the next proposed construction of paragraph 5, there is scope where the adjudicator disagrees with a certificate under paragraph 5(3)(a) for him to refer the matter back to the Secretary of State under paragraph 5(6); and in addition it is clear that in the case of a certificate under paragraph 5(3)(b) the adjudicator may both disagree with the certificate and dismiss the appeal. I do not consider, therefore, that this argument should persuade me that anything like a judicial review exercise is involved in the certification procedure. So I reject this proposed construction of paragraph 5(3)(a). It follows that the certification process, if invoked, involves both Secretary of State and adjudicator in a judgment as to the factual merits of the applicant's claim".

The last passage in his judgment, which is material to the present purposes, is at page 362B:

"In my judgment, the true construction of paragraph 5(3)(a) is this: an applicant's claim does not raise any issue as to the United Kingdom's Convention obligations unless, on the facts, it is incumbent upon the Secretary of State to consider his substantive claim to refugee status. On that basis, paragraph 5(3)(a) can only apply in third country cases, since in every other case where asylum is claimed the Secretary of State will have to decide the claim to refugee status on its merits. This reasoning identifies the class of case in which a certificate under paragraph 5(3)(a) may be issued; but the class contains three sub-classes.

The first arises where the special adjudicator may lawfully agree with the certificate, and so dismiss the appeal. In my judgment, he is to agree if on the material before him at the hearing of the appeal he concludes that the applicant may properly be removed to a third country under paragraph 180K of HC 725. As Mr. Pannick accepts, it would be for the Secretary of State to demonstrate that the applicant may be so removed.

The second sub-class arises where the adjudicator concludes on the facts that paragraph 180K of HC 725 does not justify removal; then he will disagree with the certificate, and he may either allow the appeal or refer the case to the Secretary of State for reconsideration under paragraph 5(6) of Schedule 2: in practice, he is likely to do the latter since ex hypothesi the applicant's substantive claim to refugee status would then have to be decided.

The third sub-class arises where the adjudicator is in doubt as to whether, on the facts, the applicant may properly be removed within paragraph 180K of HC 725. In such a case he will also disagree with the certificate, since the Secretary of State will not have satisfied him that paragraph 180K applies. If everything else were equal, one would expect it to be the duty of the adjudicator, like any other judicial office-holder, to make up his mind one way or the other. But the time-limits are important here: the scope for resolving any proper doubt, which the adjudicator initially entertains, by an adjournment for further evidence is circumscribed by the pressure which the Asylum Appeals (Procedure) Rules 1993 exert to promote fast decision-making. Certainly the adjudicator is not to conduct an exhaustive inquiry involving anything like extensive adjournments. Thus there may be cases, though I emphasise in my view they will be very few, in which he may permissibly entertain substantial doubts on the material presented to him within the short time-scale which is prima facie prescribed. In a case of this kind, having disagreed with the certificate, the adjudicator is likely also to refer the matter back to the Secretary of State under 5(6) indicating the scope of his doubts for the assistance of the Secretary of State on the latter's reconsideration of the case. In contrast to the second sub-class, the primary subject of the reconsideration will be the applicability of paragraph 180K of HC 725, rather than the substantive asylum claim; though if, upon the case being referred back to him, the Secretary of State concludes that the applicant would be at risk if he were removed under paragraph 180K, he will no doubt go on to address the substantive claim."

For the applicants, Mr. Scannell submits that the Shorter Oxford English Dictionary defines "frivolous" as "manifestly futile" and the phrase "frivolous or vexatious" should be construed as it has been under Order 18, rule 19 which provides:

"(1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that

(a)it discloses no reasonable cause of action or defence, as case may be; or

(b)it is scandalous, frivolous or vexatious.

(2)No evidence shall be admissible on an application under paragraph l(a)".

It is to be noted that that rule differs from its precursor in that its precursor geared frivolousness or vexatiousness to what appeared on the pleadings and did not contemplate the admissibility of any evidence at all. As is apparent from sub-rule 2, evidence is now admissible under the rule as presently framed in relation, in particular, to whether an endorsement or pleading is scandalous, frivolous or vexatious.

Mr. Scannell refers to the authorities cited in the notes, in the White Book, to that rule. He stresses the power to strike out under this rule is seldom exercised and only in plain and obvious cases. The purpose of the rule is to stop cases which ought not to be launched and which are obviously unsustainable on the face of the pleadings. He referred in particular to Attorney-General V London and North-West Railway [1892] 2 Ch 274, Young v Holloway [1895] P 87, Day v William Hill [1949] 1 KB 632 and Wenlock v Moloney [1965] 1 WLR 1238.

It is to be noted that the rule was, in the way which I have already identified, differently expressed when the first three of those cases was decided. it is also to be noted that although in Wenlock v Moloney the Court of Appeal refused to look at 10 affidavits, the deponents of which had not been cross examined, and said that it was not for the Master to usurp the trial judge's function, there is recent authority in Blue Town Investments Ltd v Higgs & Hill plc [1990] 1 WLR 696, a decision of Vice-Chancellor Browne-Wilkinson, as then he was, that in some cases it may be appropriate to look at the evidence. That, of course, is in no sense surprising, having regard to the provisions of Order 18, rule 19(2) which does not preclude consideration of evidence on an application under 19(1)(a).

It is also to be noted that in asylum cases there are no pleadings and, also. of particular importance, that whereas the role of a civil judge on an interlocutory application is not to find facts, for that is a matter for the trial judge, it is, it seems to us, clear beyond argument that the special adjudicator has a fact-finding role. In our judgment, therefore, the assistance presently derived from the authorities in relation to the Rules of the Supreme Court is limited to the meaning of "frivolous" and "vexatious": no assistance is provided as to what procedure for determining frivolity or vexatiousness should be followed.

Mr. Scannell's central submission is that the meaning of "frivolous" is clear and free from ambiguity, and a claim will only properly be so regarded if, on the face of the material before the special adjudicator, it cannot engage the Convention. This question, he says, is to be determined without any reference to the credibility of the applicant. Any claim which, if believed, engages the Convention cannot, he submits, be frivolous and it is the facts, riot the merits, which are to be considered in relation to the Secretary of State's certificate.

As an alternative, albeit inconsistent submission, he resorts to Pepper v Hart [1993] AC 593 and contends that if there is ambiguity in the meaning of "frivolous" the examples given by Earl Ferrers in the debate in the House of Lords on the Bill, which gave rise to this Act, namely boredom with one's country or conflict with one's mother-in-law, show the very limited scope for frivolous applications within 5(3)(b).

For the respondent Mr. Tam submits, in reliance on ex parte Mehari, that in a 5(3)(a) claim the adjudicator can agree with the certificate and dismiss the appeal, disagree with the certificate and allow the appeal, disagree with the certificate and refer the case back to the Secretary of State for reconsideration, (usually substantive consideration, because the adjudicator does not accept that it is a third country case), or be unsure whether the certificate is good and refer the case back to the Secretary of State for reconsideration, (usually as to whether a third country removal is proper). The adjudicator in a 5(3)(a) claim cannot disagree with the certificate and dismiss the appeal because, in a 5(3)(a) case, no substantive consideration has yet been given by the Secretary of State to the merits of the asylum claim itself.

Mr. Tam submits that, in relation to a 5(3)(b) claim, where the Secretary of State has necessarily already considered the substantive merits of the asylum claim to the extent of deciding whether it discloses a Convention reason, it is open to the adjudicator first, to agree with the certificate and dismiss the appeal, or secondly, to disagree with the certificate and allow the appeal, or thirdly, to disagree with the certificate and refer the case back under 5(6) to the Secretary of State for further consideration of the merits of the asylum claim, or fourthly, to disagree with the certificate and dismiss the appeal, that is to say, to find that the appellant does not qualify for asylum even though the Secretary of State was wrong to assert that the claim was frivolous or vexatious.

In that case there is a right of appeal to an Imigration Appeal Tribunal because, by virtue of paragraph 5(5), it is only where the special adjudicator agrees with the certificate and dismisses the appeal, that a right of appeal is taken away. Mr. Tam submits that, in the passage already cited from the judgment of Laws J at 358E,

"It is clear that in the case of a certificate under paragraph 5(3)(b) the adjudicator may both disagree with the certificate and dismiss the appeal."

Laws J was plainly right otherwise paragraph 5(6) would be redundant. This follows, because in 5(3)(a) the special adjudicator cannot disagree with the certificate and dismiss the appeal. Accordingly, the words in 5(6) "or dismissing the appeal" must, submits Mr. Tam, apply to 5(3)(b). In consequence, he submits that certification of a claim as a 5(3)(b) claim does not prevent the adjudicator from dismissing the appeal in toto even if the certification is incorrect.

The adjudicator must, or alternatively may, consider the merits of the asylum claim and not simply whether the certification was correct or incorrect. He is not merely looking to see if the Convention is arguably engaged because if this were so there could be no possibility of disagreeing with the certificate and dismissing the appeal. This is, submitted Mr. Tam, very similar to 5(3)(a) cases whereas Laws J held that the adjudicator has to consider material in relation to third country cases.

Mr. Tam submitted that the decisions on the rules of the Supreme Court are of some materiality. He draws attention to the word "otherwise" which starts the sub-paragraph in Order 18, rule 19(1)(d) as indicating that the earlier subparagraphs, including (b), which is presently here material, in themselves involve abuse of process. The consequence is, submits Mr. Tam, that there is an obvious overlap between the groups identified in (a), (b), (c) and (d) in Order 18, rule 19(1). Despite that overlap he submits that "frivolous" or "vexatious" does not mean the same as no reasonable cause of action. There are frivolous or vexatious cases where there is a reasonable cause of action and he cited the decision of Sir Nicholas Browne-Wilkinson in Blue Town Investment v Higgs & Hill.

In considering whether a claim is frivolous or vexatious the court can, submitted Mr. Tam, look at the evidence as to the merits of the case. A case may be frivolous and vexatious, he submitted, either because it, on its face, does not engage the Convention at all, or because examination of the facts demonstrates a high probability of failure because the applicant's credibility is manifestly unreliable and/or because there is an attempt as there was in ex parte Murida an unreported decision of Latham J on 24 March 1994, to relitigate decided issues.

The circumstances in which the special adjudicator can disagree with the Secretary of State were considered by Mr. Tam in his submissions. He submitted that the adjudicator can agree with the certification even if the special adjudicator takes the view that there is a different basis for it than that advanced by the Secretary of State having regard to the oral evidence which he, the adjudicator, has heard. The special adjudicator cannot, he submitted, be restricted to agreeing with the Secretary of State's basis for the certificate because if that were so it would be too easy for an applicant to manipulate his claim in such a way as to deprive the adjudicator of his ability in law to uphold the certificate.

Furthermore, it would, he submits, be difficult to decide when the basis for the claim had changed and sometimes there would be cases in which the applicant, albeit plainly advancing several different explanations to the Secretary of State, advanced yet another one before the special adjudicator. In such a situation the special adjudicator would be able, submitted Mr. Tam, to uphold the frivolous finding of the Secretary of State, notwithstanding that the material before him was different.

As to the construction of paragraph 5(3)(b) we accept Mr. Tam's submissions. In our judgment, not only are they supported for the most part, albeit not entirely, by the judgment of Laws J to which we have referred, but they make sense of the statutory provisions as a whole. In our judgment, a special adjudicator can take any of the four courses identified by Mr. Tam and the credibility of the applicant to an extent, which we shall indicate in a moment, may be material in deciding which of those courses to take.

It seems to us that the difficulty at the heart of Mr. Scannell's submission is that absent any pleadings, it is impossible to make a decision on the facts until the question is first asked what the facts are and this must depend, in part, at least, on credibility. Mr. Scannell did not suggest that it is not open to a special adjudicator to hear evidence from the applicant. There seems little point in hearing evidence unless an investigation into the facts is permissible and relevant. If, in the course of that investigation, it appears to the special adjudicator that the applicant's account is unworthy of belief this might justify him in disagreeing with the Secretary of State's certificate and either referring the case back to him for reconsideration of the merits, or finding that the claim is without foundation and dismissing the appeal.

It does not follow that want of credibility on the part of the applicant in itself justifies characterisation of his claim as frivolous or vexatious. If the applicant's account is totally incredible on matters which provide the basis for engaging the Convention then his claim can properly be so described. But if his lack of credibility is not so fundamental either because, for example, it only relates to fringe matters or because arguably it does lean on the basis of the claim, in our judgment it is not possible for an applicant's claim to be characterised either by the Secretary of State or by the special adjudicator as frivolous under 5(3)(b).

In the light of this approach, we turn to the circumstances of the present applications. The applicant Paulino is an Angolan national, born in June 1964. He arrived in the United Kingdom in December 1993 and leave to enter was (granted to him on the basis of a Portuguese passport which he later claimed to have found in a taxi. He applied for asylum a few days after arrival.

On 12 January he was interviewed at Gatwick and referred on that occasion to the basis of his claim for asylum as being "there is no conditions for people to live or survive in Angola". In response to further questions he said that his father had been shot to death by persons unknown and that his mother had disappeared after the result of elections had been announced. He said that he was fearful of being persecuted and harassed by the state security forces in Angola.

On 14 January the Secretary of State declined to consider this applicant's claim on third country grounds and he also certified the claim as being without foundation as not raising issues as to the United Kingdom's Convention obligations. Against that the applicant appealed successfully to a special adjudicator who ruled the certificate had not been properly issued and remitted the matter to the Secretary of State for reconsideration. On 1 March a statement by the applicant was submitted to the Home Office in which he said he decided to leave the army in Angola, after the murder of his father and disappearance of his brother. He had deserted from the army and feared court martial for desertion, for which he stated the penalty was 20 years' imprisonment, but, in practice, the firing squad.

On 14 and 21 March he was again interviewed. He said that he feared to return to Angola from Portugal, that his brother had been politically active with an association against communists and that his family came under surveillance when he sought to leave the army. He had been sent on a course to Portugal, but having in October 1993 left the military he would be executed, if he were returned to Angola.

On 22 April 1994 detailed representations were made on his behalf in a letter from the Refugee Legal Centre. That set out, in considerable detail, a number of additional matters, in particular that he had resolved to leave the army, to disassociate himself from the army, and that he believed his father had been murdered because of his brother's political activities. He, himself had no particular political sympathies, but he did not wish to kill his fellow citizens. He set out further reasons why he expected to face execution by firing squad for desertion. He also sought to explain that his desertion would be regarded as a political act against the ruling party and particularly would be so in the light of his brother's activities against the ruling party.

A submission was made by letter that consideration in the case of the applicant should be given to paragraph 171 of the Handbook on procedures and criteria for determining refugee status, namely the circumstances in which desertion is capable of engaging the Convention. That letter, submits Mr. Scannell, manifestly engaged the Convention. The applicant was further interviewed on 23 May and there was a further letter at the end of June in relation to a Portuguese resident's permit.

The Secretary of State, in July 1994, again certified the applicant's claim to be without foundation, this time on the basis that it was frivolous and the following paragraph appears in the bundle:

"The Secretary of State is satisfied that you have expressed no fear of return to Angola for a reason detailed under the terms of the 1951 United Nation's Convention relating to the Status of Refugees. Your reason for allegedly deserting the Angolan army, and thus the sole basis of your claim for asylum, appears to have been because of the difficulties caused by the war in Angola and the lack of food available in army rations. Furthermore, the Secretary of State is aware that desertion from the armed forces attracts in theory only a maximum sentence of four years' imprisonment. However, he is also aware that this is rarely enforced and he does not accept that you would be likely to suffer a disproportionate punishment in consequence of your desertion".

It is clear that the Secretary of State did not take issue with the credibility of the applicant, but appeared to accept, for example, the fact of desertion from the army. The Secretary of State, indeed, in his letter, refers to disproportionate punishment. That, of course, is a matter which is material to whether or not the circumstances of the application engage the Convention.

The applicant appealed. The appeal was heard before the special adjudicator on 3 October and his decision was promulgated on 11 October. It appears from the last page of the decision, for reasons which he gave, that the adjudicator was not satisfied that the applicant was a credible witness. The adjudicator goes on:

"Accordingly, I ruled that I found that the appellant's application was frivolous"."

The adjudicator referred on the penultimate page of his decision to his lack of satisfaction with the appellant as a credible witness, having regard to not accepting his evidence about fortuitously finding in a taxi a passport in Lisbon and not being satisfied with the reasons given for deserting the army. The adjudicator also referred to paragraphs 170 and 171 of the Handbook id said that the applicant:

"Did not satisfy me that there was any genuine reason political. religious or moral for him to wish to leave the army. With regard to his father and his mother and brother the evidence again was so vague that I could not attach any weight to it".

Mr. Tam made a most careful analysis of the history of the facts of this matter. He submitted that, those matters emerging at different times from and on the applicant's behalf, the Secretary of State was entitled to the view which he expressed in the certification letter which I have read. Mr. Tam submitted that none of those matters then before the Secretary of State engaged the Convention. In our judgment that argument is unsustainable once it is accepted, as Mr. Tam did accept, that, at least by the time of the applicant's second interview, it might have involved Convention reasons, although the applicant himself did not say so. In our judgment, such a case, whatever its ultimate outcome, could not properly be described as frivolous. Indeed "frivolous" in the paragraph which I have read from the Secretary of State's letter does not, as it seems to us, accurately summarise the position as it then appeared. In particular lack of food in army rations was plainly not the sole basis for the asylum claim.

Even if we are wrong about this and the Secretary of State's conclusion was justified on the material before him, it seems to us that the special adjudicator's conclusion, notwithstanding that he was fully entitled to view the applicant's credibility with grave suspicion and, indeed, lack of satisfaction, was flawed, this is because, as appears from the last page of his decision which we have read, he moved straight from a conclusion that he was not satisfied that the applicant was a credible witness to a finding that, accordingly, the application was frivolous. The earlier passages in his reasoning which we have read do not, in our judgment, suffice to make good that flaw. It seems to us, that a firing squad at least arguably, may be excessive punishment within paragraph 169 in the Handbook, particularly if his desertion turns out to be due to the political activities of his brother to which he had referred in interview from a comparatively early stage.

There are, of course, many ifs and buts in the applicant's accounts. But it does not seems to us that on the material before the special adjudicator this application should necessarily be characterised as frivolous.

The special adjudicator was particularly critical of the fact that the applicant's reasons for wishing to desert and therefore seek asylum, differed from the more limited explanations which he gave at interview, which were concerned largely with his conditions of army service. That appears to have been the main reason why the Secretary of State had concluded that the application was frivolous. We accept that there may well be force in these criticisms and we are, of course, not to be taken as expressing any view as to the ultimate strength of the applicant's case. But we have reached the conclusion, that before this claim can properly be categorised as frivolous or vexatious within 5(3)(b) so as to deprive the applicant of a right of appeal to an Immigration Appeal Tribunal, a more detailed analysis is called for as to the impact on his claim of the applicant's want of credibility in certain aspects.

I turn to the applicant, Edoukou. He is a native of the Ivory Coast, where he was born in 1969. He arrived in the United Kingdom from France on 28 May 1994 and claimed asylum that day. He was interviewed approximately two weeks later and gave initial details of his application. He said that his grandfather had been an Appollo tribal chief and his father, who would have been the grandfather's natural successor, had been killed by rivals about a year earlier. His elder brother had also been killed and he had himself fled because of fears for his own safety. He had no knowledge of, or contact with politics as such and in consequence the immigration officer voiced the opinion that the application lacked credibility.

He was further inter-viewed on 18 July and repeated his account of the death of his father and brother. It was believed that the brother, who died suddenly, had been killed and he feared he himself would be killed. He said that people were afraid to report the problems to the authorities for fear they may be killed and this affected some 30,000 people and a substantial area of land.

Mr. Scannell submitted that that clearly raised an issue in relation to Convention matters, there being a dispute within the tribe, the tribe itself being a tribe different from the ruling tribe in the Ivory Coast.

On 2 September the Secretary of State certified that the applicant's claim for asylum was without foundation on the grounds that it was frivolous. The Secretary of State said:

"You said that your grandfather was the chief of the Appollo tribe and after his death your father was next in line to succeed him but an opposing faction killed him and your elder brother, leaving you as heir, and that the reason why you fled to Abidjan from your village was in order not to also be killed by this faction. This does not constitute persecution as defined in the 1951 UN Convention Relating to the Status of Refugees".

The applicant was refused leave to enter on 8 September. On 20 September he appealed. On 31 October the Refugee Legal Centre made representations to the Home Office providing further details about the killing of the applicant's father by a rival faction and indicating how there were powerful links between that faction, which supported the government, and the tribe of which the applicant was a member. The letter also explained that the applicant's father had been involved with the political party up until his death. The special adjudicator gave her decision, after hearing the appeal on I November, on 8 November.

Mr. Tam, although not dwelling on the facts of the case, submitted that there was an absence of the mention of government or political involvement in the applicant's first interview. He submitted conflict within a tribe could not fall within the Convention, but he did accept that conflict between tribes could give rise to a Convention matter.

The adjudicator confined herself to considering whether the certification was correct in the light of the evidence adduced by the applicant before her. She said that she disbelieved the applicant and she did not accept his explanations for earlier silence about political involvement, and she rejected the case that there was any such political involvement. She concluded that there was no reasonable cause. Mr. Tam submitted that there was in truth no reasonable cause of action and the adjudicator was entitled to agree with the certificate and dismiss the appeal. Alternatively she was entitled to dismiss the appeal in any event as the applicant's claim was not made out on the facts.

The special adjudicator accepted the applicant's evidence that his father and brother were killed because of a tribal conflict. She further accepted, at least by implication, that he might well face problems if he was returned, but she found that the problems would not amount to persecution within the Convention. Her reasons for rejecting the applicant's case were largely based on the incredibility of the evidence given by the applicant as to the circumstances in which he came to enter this country and why he had not sought to claim political asylum immediately upon entry. She acknowledged that the applicant had at all stages of his interview expressed his fears of being killed if he were returned to the Ivory Coast and she did not suggest that such fears were not genuine.

There was some evidence before her which she did not reject that the tribe of which the applicant was a member, the Appollo tribe, was in conflict with another tribe and that that tribe provides many, if not all, of the members of the present government of the country. So that it seemed arguable that the applicant might find it difficult to approach the authorities for help if he returned to that country. The special adjudicator acknowledged that, if the evidence placed before her was accepted, then the applicant raised a prima facie case of engaging the Convention.

We have accordingly come to the conclusion that it was inappropriate to categorise this application as frivolous and wholly without foundation under 5(3)(b). We express, again, no view as to what the ultimate conclusion may be on an appropriate and full consideration of this matter. But the circumstances as we have set them out were not such as, in our judgment, to justify peremptory dismissal of this applicant's case.

Accordingly, for the reasons given, we quash the decision of the special adjudicator in each case,

Mr. Tam suggested some alternatives to the course which we are about to order. We are unattracted by them in both cases. We order that the case be remitted to a different special adjudicator for reconsideration in the light of this judgment.

Applications granted

Solicitors: Winstanley-Burgess, London EC1; Treasury Solicitor

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