R (on the application of Mahamed) v. Secretary of State for the Home Department

"Whether the certificate from March 2004, for the Claimant's removal to the safe third country, had legal effect and whether under the new provisions of the Asylum and Immigration (Treatment of Claimants) Act of 2004, the Secretary of State was and remain legally entitled to certify that the Claimant is returnable to Italy. The Claimant's humans rights claim was also considered.

Safe Third Country Certification

(a) ""Issue"" of the safe third country certificate

20. In the Claimant?s submissions, a certificate to be issued in accordance with the meaning of that phrase in the 2004 Transitional Provision must have been served on the Claimant. Issue means service. The certificate not having been served until after 1 October 2004, the Claimant submits that it had not been issued under extant legal provisions and was thus a nullity. Section 11 of the 1999 Act and section 93 of the 2002 Act, which would have given it legal effect, had been repealed by section 33 of the 2004 Act as from 1 October 2004. After that date it was as if those sections had never existed and anything done in reliance on them, in this case service on 6 October 2004, was a nullity. The Transitional Provision could not save it. Consequently, under the statutory provisions outlined earlier, the Claimant is entitled to appeal to the Tribunal from within the United Kingdom.

21. By contrast the Secretary of State submits that ?issue? when used in the Transitional Provision does not equate with service. Issue means confirming that limited factual circumstances hold for removal of the person to a safe third country. There needs to be the definite date which this meaning of issue produces rather than the uncertain dates which would occur if issue meant service. That is so that the Secretary of State can rely on it in her decision to refuse entry. The matter can also be tested because it
would not have mattered whether a certificate was issued as in March under the previous legislation or after 1 October under the new legislation. This certificate was issued by the Secretary of State on 22 March 2004 when it was drawn up, well before the date of 1 October 2004 required by the Transitional Provision for it to be effective.
22. In the absence of any definition in the Transitional Provision of what is meant by issue of a certificate one considers initially whether there is any common meaning of the term. There does not seem to be, the concept of issuing a document having an ambiguity about it. At a high level of abstraction, in the context of documents, its meaning is along the lines of putting out or sending authoritatively. More concretely
there seems to be a spectrum of meanings. The use of issue in the Year Books, referred to earlier, is perhaps some support for issue having a meaning at the creation or execution end of the spectrum. In other contexts issue has connoted further activity and involves the idea of delivery of the document or passing it from one person to another. In other words the meaning of issue ranges from creating or executing a document through to service of the document.

22. Nor is there any consistent meaning of issue in immigration and asylum legislation. For example, the first third country certification provisions, in the 1996 Act, referred to ?has certified? (section 2) and a certificate ?has been issued? under section 2(1) (section 3). The successor sections, 11 and 12 of the 1999 Act, each referred to ?certifies? and to ?issued?. In the 2002 Act a number of sections mention the two concepts, ?certifies? and ?issued? in the same section: e.g. ss. 94, 96. In other words ?certifies? is being used interchangeably with ?issue? of a certificate. By contrast other sections of the 2002 Act refer only to certify, without reference to issued (ss. 97, 98). Section 99 of that Act refers to ?issued?, including in relation to a certificate under section 98, notwithstanding that section 98 makes no express reference to a certificate being issued.

24. Mr Toal for the Claimant advanced a number of arguments supporting his contention that the concept of issue in the context of the Transition Order means service. First, he submitted that since a safe third country certificate affected a person?s fundamental rights, any ambiguity in the meaning of the term had to be resolved in favour of the individual: R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131 E-G. Moreover, there is the important principle that a person has to have
notice of a legal determination before it had legal effect because he or she must be in a position to challenge it in court: R v Secretary of State for the Home Department, ex p Anufrijeva [2003] UKHL 36 [2004] 1 AC 604, [27]. Access to justice was a fundamental right and that included access to the tribunal: R v Secretary of State for the Home Department ex p Saleem [2001] 1 WLR 443, 458A, per Hale LJ. Hence the effect of a certificate being issued is to affect what the subject of the certificate may do, namely, exercise the fundamental right of access to justice, in this instance appealing to the tribunal from within the United Kingdom. There were no exceptional features justifying a departure from these fundamental principles in this case and treating a certificate as effective unless served.

25. The difficulty with this argument is two-fold. There is no doubt that access to justice is a fundamental right, both at common law and under the European Convention of Human Rights. But access to justice can come in many forms, from access to the courts, through tribunals to institutions such as the Ombudsman. Nor does access to justice necessarily demand the presence of the person to argue the case. That is plain even with in-country cases before the tribunal. The result of a safe third country
certificate is not that the Claimant is denied access to the tribunal but that he or she must conduct the case from abroad. There may well be advantages if the Claimant is present at the tribunal hearing, especially since his credibility is likely to be an important aspect of its inquiry. There was some discussion at the hearing about whether there could be a video link from Italy. But even if this were not possible, it
cannot be said that the fundamental right of access to justice is being denied. Moreover, the fundamental right here must be matched with the policy choice, made across Europe, that asylum seekers should have their cases dealt with by the country where they first entered or resided.

26. Mr Toal then drew on a number of legislative sources to support his contention that to ?issue? a certificate under the Transitional Provision meant to serve it. The way that concept is dealt with in other parts of the immigration and asylum legislation is not, in my view, of great assistance, given that it is very much a statutory jumble. However, Mr Toal referred to the Transitional Provision governing the introduction of the new appeals provisions in the Nationality, Immigration and Asylum Act 2002.
Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003, SI 2003 No 754. Schedule 2 of that reads, in part:
?6 (3) Where a certificate is issued under section 11 (removal of asylum seeker to third country), as substituted by section 80 of the 2002 Act, before 1 April 2003 and an allegation is made after 1 April the allegation may be certified under section 72(2) of the 1999 Act, notwithstanding its repeal by the provisions of the 2002 Act commenced by this Order, and that certification shall have effect for the puiposes of an appeal under the old appeal provisions.?
Section 72(2), referred to in this article, prevented an in-country right of appeal where the Secretary of State certified a person?s allegation of breach of human rights as manifestly unfounded. The Order in its definition section, article 4(3), provides that events are regarded as having taken place under the old Immigration Acts when, amongst other things, a certificate was issued. Significantly the definition of section continues:
?(4) for the purposes of this Order (d) a certificate was issued; on the day on which it was or they were sent to the person concerned, if sent by post or by fax, or delivered to that person, if delivered by hand.?
So issue of a certificate in that Transition Provision meant its service on the person. Thus, the Claimant contends, issue should be interpreted in the same manner in the Transition Provision applicable to the certificate in this case.

27. No judicial authorities were cited, nor indeed were any needed, in support of the proposition that when a word or phrase is defined in one legislative instrument, that definition may be carried over to its interpretation in a legislative instrument in pari materia. (See the illuminating discussion in Bennion on Statutory Interpretation, 5 edn, 2008, 603-4). Especially if a word or phrase is defined in an unusual manner in one legislative instrument, but is not defined in legislation in pari materia, the legislative intention may be taken to be that the same meaning should attach in both. So, too, in this case. Since the concept of issuing a certificate was defined in the 2003 Transitional Provision, dealing with immigration and asylum appeals, but not defined in the 2004 Transitional Provision, also relevant to such appeals, should not the definition in the former be carried over to the latter?

28. For the Secretary of State Ms Simler QC submitted that it would be wrong to use the definition of ?issue? in the 2003 Order to give meaning to that concept in the Transitional Provision relevant in this case. Given the variety of ways the concept is used in the immigration and asylum legislation, it would be artificial to latch onto the definition in the 2003 Order. That Order is no more in pari materia than other parts of the legislative package governing the subject matter. That Order is concerned with preserving events for the purposes of appeals. The concept of issue in the context of the 2004 Transitional Provision is different. The context is a simple determination that another Member State of the European Union has accepted that it is responsible for processing a person?s asylum claim, and that the person is not a national of that other Member State. The consequence of that determination is that the person may be
returned to that Member State since the statutory law on removal of an asylum claimant is removed (e.g. section 11(2) of the 1999 Act). However, removal is not inevitable, for the Secretary of State may make an exception. In any event there needs to be a decision of the Secretary of State to remove the asylum claimant, separate from the certificate itself.

29. In my judgment the Transitional Provisions in the two Orders are in pari materia. Both are concerned with the issue of safe third country certificates under section 11 of the 1999 Act. Albeit that the protective focus of the Transitional Provisions is somewhat different, nonetheless there is much overlap between the two. Thus the definition of ?issue? in the 2003 Order, i.e. service, should be applied to give meaning
to ?issue? in the 2004 Order. There is no doubt that definitions in legislative instruments take meaning from their own particular context, but in this case I do not accept that there is anything artificial in applying the same meaning in secondary legislation having a common paternity. Accordingly, the safe third country certificate of March 2004 in this case was not issued because it was not served before the
authorising legislation was repealed. It was thus a nullity.

(b) Recertification

30. Shortly before this hearing the Secretary of State, as outlined above, issued a further safe third country certificate under paragraph 5(1), Schedule 3, Part 2 of the 2004 legislation. The Claimant contends that this new certificate is to no effect in preventing his in-country appeal. The argument turns on the meaning of paragraph 5(2) of Schedule 3, Part 2:
?The person may not bring an immigration appeal by virtue of section 92(2) or (3) of the Act (appeal from within the UK:general).?
Brought, it is submitted, means initiated or commenced. The Claimant, it is said, ?brought? an appeal; he did so by giving notices of appeal back in 2004. If the 2004 safe third country certificate is, as contended, a nullity, then the Claimant was entitled to bring an appeal in-country, since section 93 of the 2002 Act did not prevent him from doing that. With respect to the new certificate under the 2004 Act, paragraph
5(2) has no effect. The Claimant has already brought his immigration appeal. A paragraph 5(1) certificate cannot prevent an appeal from being continued once brought.

31. In a sense, Ms Simler QC submitted that the Claimant is hoist with his own petard. If the March 2004 safe third country certificate is a nullity, as he has successfully argued, it follows that there was no decision attracting any right of appeal under section 82(2) of the 2002 Act, and the appeals commenced by him by notices of appeal in late 2004 are also to be treated as nullities. Furthermore, Ms Simler QC has made withering critiques of the appeal notices themselves. In her submission, clearly correct, the immigration decision which the Claimant needed to appeal was that contained in the IS82D, the ?Notice of Refusal of Leave to Enter?, served on 6 October 2004. The safe third country certificate was served along with that notice but under section 82 of the 2004 Act was not itself an immigration decision. The 9
November 2004 notice of appeal purporting to appeal the ?decision of 22/3/04? was thus clearly ineffective. The notice of appeal dated 14 December 2004 appealed ?Decisions of Various Dates including 22/3/04 and 21/10/04 to remove appellant from UK?. The letter of 21 October 2004, as described earlier, certified that the Claimant?s claim that removal to Italy would breach his Convention rights was clearly unfounded. That decision attracted appeal rights under section 82(1) but under section 92(4)(a) (or its predecessor section) and paragraph 5(4) of Schedule 3 to the 2004 Act, he could only exercise those rights from abroad.

32. The Claimant?s response to these criticisms is that, properly and generously interpreted, the appeal notices can relate to an immigration decision. The letter of 21 October is on a proper interpretation an immigration decision, and the letter of 22 March 2004 sufficiently identifies an appealable immigration decision. The reference to ?decisions of various dates? was sufficient to identify the decision appealed.
Moreover, the Claimant submits - and there appears to be some circularity here - it is a matter for the Tribunal to determine whether there is a ?relevant decision? (in accordance with Asylum and Immigration Tribunal (Procedure) Rules 2005, SI No 230 r. 9, applicable by virtue of r. 62(1) of the same rules). Finally, it is said that the appeal notice can be amended. Those latter points were not developed in oral
argument.

32. Even were I inclined to adopt a sympathetic interpretation of the appeal notices, which afterall were drafted by solicitors, my view is that the Claimant?s argument under this head falls at the first hurdle. That is because paragraph 5(2) of Schedule 3, Part 2 of the 2004 Act bites on any appeal by the Claimant. It will be recalled that the submission in this regard was that the prohibition there - a person ?may not bring an immigration appeal? - cannot prevent an appeal from being continued, once brought. To have that effect the submission runs, the provision would have to prevent an appeal from being ?brought or continued? in order for a safe third country certificate from having any legal effect on the claimant?s appeal.

34. In my judgment the concept of bringing an appeal refers to a process. It is not a oneoff event, when the appeal is initiated. Admittedly there are provisions in the immigration legislation which prevent an appeal from being ?brought or continued? (e.g. Nationality, Immigration and Asylum Act 2002, ss 96, 97, 97). However, that does not deprive ?bring? of its ordinary meaning in the context of appeals in
paragraph 5(2). ?To bring an appeal? has a transactional quality about it and the prohibition on bringing an appeal operates on any ongoing appeal. The prohibition did not have to operate expressly as one on bringing and continuing an appeal. The safe third country certificate of earlier this year therefore stopped any existing appeal in its tracks.

(c) Certification and discretion

35. The Claimant also relies on the Family Ties Policy in relation to safe third country cases announced to the House of Commons in July 2002. Under it the Secretary of State may exercise her discretion to permit asylum claims to be considered in the United Kingdom, rather than returning the person to the safe third country where, according to the merits, there is clear evidence that the applicant was wholly or
mainly dependant on the relation in the United Kingdom and that there was an absence of similar support elsewhere. Factors which might influence the exercise of discretion in these cases, such as language, cultural links or the number of family links in the United Kingdom may have a bearing, but there would need to be a compelling combination of such factors to ensure the exercise of discretion in favour
of the applicant. The intention of the policy is said to be to re-unite members of an existing family unit who, through circumstances outside of their control, have become fragmented.

36. It is difficult to see how the Family Ties Policy can assist the Claimant. It was made clear at the time the policy was announced that cases falling within it were expected to be rare. A brother, not dependant on his siblings, would not normally have his case considered in the United Kingdom under the policy. It was also said expressly that where the relationship did not exist prior to the person?s arrival to the United
Kingdom the policy is only applied in the most exceptionally compelling cases. In her submissions the Secretary of State contended that given the history of the Claimant in the years prior to arriving in the United Kingdom, when he was not dependent on his brothers, he did not fall squarely within the policy. Moreover, the policy is applied on a discretionary basis. In my judgment it is difficult to see how the
Secretary of State?s interpretation of the application of this policy to the Claimant can be faulted in public law terms. Her view is that it does not apply and it cannot be said that no reasonable Secretary of State could take that view.

Certification of human rights

37. Since the safe third country certification earlier this year is effective, it becomes necessary to consider the separate certification, that the Claimant?s human rights claim is clearly unfounded. There was no disagreement as to the test to be applied: in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] 1 AC 920 it was said that the Secretary of State is entitled to certify a claim as clearly unfounded if, after carefully considering the allegation, the grounds on which it is
made and any material relied on in support of it, ?he is reasonably and conscientiously satisfied that the allegation must clearly fail? (per Lord Bingham at [14]), if the allegation is ?so clearly without substance that the appeal would be bound to fail?, (per Lord Hope at [34]) or if ?it is plain that there is nothing of substance in the allegation? (per Lord Hutton at [72]). If on at least one legitimate view of the facts or
the law the claim may succeed, the claim is not to be regarded as clearly unfounded: R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230, [58]. The court?s task is to ask whether in the light of all the present information the appellant?s human rights claim was bound to fail: R (Atkinson) v Secretary of State for the Home Department [2004] EWCA Civ 846, [44]-[45].

38. The Claimant?s submission, in short, is that removing him to Italy would breach his right to respect for private and family life, largely based upon his relationship with his brothers and their families in the UK. Whilst he is an adult he is nevertheless particularly dependant upon them owing to his and his family?s past experiences and his mental ill-health for which those experiences are substantially responsible. Those experiences include the flight from his home, the death of his mother and other brother and the voyage to Italy. It is the nature and extent of the dependency which means that in his particular circumstances he is entitled to protection from removal by Article 8 of the European Convention on Human Rights. Since arriving in the UK he has lived with his older brother and his wife and their children, and his other brother lives nearby and sees him most days, brothers? houses unless accompanied by one of them.
39. There is no need to examine whether Article 8 applies. Despite Ms Simler QC?s submission at one point, it seems that the Secretary of State in her letter of 16 April 2008 has conceded that Article 8 of the European Convention on Human Rights has been engaged. The issue then becomes whether the interference with Article 8 rights is justified and proportionate under Article 8 (2): Huang v Secretary of State for the Home Department [2007] 2 AC 167; [2007] UKHL 16, [19]-[20]. Some of the factors that the Secretary of State has taken into account in considering this aspect are of doubtful value. The characterisation of the Claimant?s attempt to enter the country ?for a purpose for which the possession of a mandatory entry clearance is required? does not seem to advance the matter far, and the reliance placed on the Claimant?s absconding must be placed alongside his brother?s explanation of what happened between June and October 2004.

40. The fact is that the Claimant has been removable to Italy since 2004 and can have had no legitimate expectation that he would be able to remain. (No blame can attach to him for the delay, which derives in large part from the suspension of action against him in the light of test cases before the courts). The Secretary of State has a duty to Parliament to maintain fair and consistent immigration control, one part of which is the operation of the Dublin Regulation. There has been careful consideration, in particular, of the arrangements in Italy for the appropriate treatment of the Claimant when he arrives there in the light of the medical evidence of his moderate depression and post traumatic stress disorder. The policy of the Italian government is not to return Somali nationals to Somalia but to permit them to reside in Italy on
humanitarian grounds. That humanitarian protection confers the same degree of access to health care as is enjoyed by Italian nationals. Giving the matter careful consideration, in my judgment any contention that the Secretary of State?s action is disproportionate in returning the Claimant to Italy is bound to fail. On no legitimate view can it be said that return to Italy will result in a breach of the fundamental right
contained in Article 8. There was nothing unlawful in the Secretary of State certifying the Claimant?s human rights claim as clearly unfounded."