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Abbasi, Re [2003] ScotCS 13 (22 January 2003)

OUTER HOUSE, COURT OF SESSION

P743/02

OPINION OF LORD WHEATLEY in Petition of IMRAN ABBASI Petitioner; for Judicial review of (i) the determination of the Adjudicator to refuse his appeal; (ii) the determination of the Immigration Appeal Tribunal to refuse him leave to appeal against the determination of the Adjudicator; and (iii) a decision of the Secretary of State for the Home Department to issue removal directions ________________

Petitioner: Govier; Allan McDougall & Co, S.S.C.

Respondent: Stewart; H.F. Macdiarmid, Solicitor to Advocate General

22 January 2002

1. The petitioner was born in 1968 and is a citizen of the State of Pakistan. He arrived in the United Kingdom on 29 January 2002, was arrested on 6 February 2002 and claimed asylum shortly thereafter. He was interviewed on behalf of the respondent at Oakington on 10 February 2002. The respondent is the Right Honourable David Blunket, M.P., Secretary of State for the Home Department. By letter dated 13 February 2002 the respondent, who is responsible for enforcing the immigration laws throughout the United Kingdom, refused his application for asylum. This refusal was in terms of paragraph 336 of the Immigration Rules (H.C. 395) made under the Immigration Act 1971, s.3(2). Paragraph 336 provides that an application for asylum which does not meet the criteria set out in paragraph 334 should be refused. Paragraph 334 provides that an asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that he has arrived in the country and is (a) a refugee as designed by the relevant Convention and Protocol and (b) if refusing the application would in effect require the applicant to return to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group. In terms of his letter dated 13 February 2002 the respondent also indicated that the petitioner's application to be allowed to remain in the United Kingdom as the result of the respondent's obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms was similarly refused.
2. In addition to these refusals the respondent also certified in the course of his letter that, for the purposes of paragraph 9(1) of Schedule 4 of the Immigration and Asylum Act 1999, the petitioner's application was one to which paragraph 9(3)(b) of the Schedule applied. Paragraph 9(1) of Schedule 4 of the Act is in the following terms:

"This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which -

(a) sub-paragraph (3), (4), (5) or (6) applies; and

(b) sub-paragraph (7) does not apply.

.............................

(3) This sub-paragraph applies to a claim if, on his arrival in the United Kingdom, the appellant was required by an immigration officer to produce a valid passport and -

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

(b) he produced an invalid passport and failed to inform the officer that it was not valid.

(7) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant had been tortured in the country to which he is to be sent.

3. In particular, the respondent certified in terms of his letter in respect of these provisions that the petitioner's application was one to which paragraph 9(3)(b) applied because of the petitioner's failure to declare to the immigration officer on his arrival that his passport and travel documents were not valid, and further that it was an application to which paragraph (7) did not apply because the evidence adduced by the petitioner did not establish a reasonable likelihood that he had been tortured in Pakistan.
4. The petitioner then appealed against these refusals by way of an appeal to an adjudicator under and in terms of Part IV of the Act. Section 69 of the Act provides inter alia that:

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

The phrase "contrary to the Convention" means contrary to the United Kingdom's obligation under the Refugee Convention (section 69(6)). It is a central feature of this appeal process that, in terms of paragraph 9(2) of Schedule 4 to the Immigration and Asylum Act 1999, if the Adjudicator agrees with the opinion expressed in the respondent's certificate, an appellant in an appeal such as that undertaken by the petitioner in the present case under Part IV of the 1999 Act, who claims that it would be contrary to the obligations of the United Kingdom under the Refugee Convention or under the European Convention, has then no right to appeal the decision of the Adjudicator to the Immigration Appeal Tribunal. The petitioner appealed to the Adjudicator and his appeal was heard on 26 March 2002. The petitioner was represented at the appeal, but the respondent was not. On 16 April 2002 the Adjudicator issued his determination and dismissed the appeal on the grounds that the removal of the petitioner from the United Kingdom would not breach the country's obligations under either the Refugee Convention or the European Convention. However, in the course of that determination, the Adjudicator made no reference to the respondent's certification under paragraph 9(1) of Schedule 4 of the 1999 Act.

5. The petition thereafter applied in terms of Rule 18(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (S.I. 2333) to the Immigration Appeal Tribunal for leave to appeal against the Adjudicator's determination given under paragraph 22 of the Schedule. Such an appeal may only be made with the leave of the Tribunal. The Tribunal in a determination dated 8 May 2002 and notified on 27 May 2002, dismissed the application for lack of jurisdiction. The Tribunal noted that the respondent's certification was not mentioned in the Adjudicator's determination and concluded that the certificate had not been withdrawn and that the petitioner had therefore no right of appeal to the Tribunal.
6. Counsel for the petitioner attacked the validity of the Adjudicator's decision on two broad grounds. Firstly, he argued that the failure by the Adjudicator to consider the question of the respondent's certification in his determination of 13 February 2002 was a fundamental procedural error, and this failure to act in accordance with the procedural rules laid down in the Immigration and Asylum Act 1999 meant that in effect he had failed to exercise his jurisdiction. Secondly, the petitioner's counsel maintained that in the course of the hearing the Adjudicator enquired into material in the course of questioning the petitioner which was impermissible and had thus exceeded his jurisdiction. The net effect of this was that there was no valid determination by the Adjudicator and his determination therefore fell simply to be ignored. There was no valid adjudication against which an appeal could be taken. In these circumstances, counsel argued that the proper course was for this court to remit the case back to be heard by a different Adjudicator, who could produce a fresh determination.
7. In respect of these broad submissions, counsel for the petitioner submitted that it was accepted by the respondent that the Adjudicator did not deal with the question of certification in his determination, and that this was wrong. It was for the Adjudicator, and for him alone, to agree or disagree with the certification. No one else had the jurisdiction to consider the question of certification within the structure and framework of the appeal procedure and legislation. Although the terms of paragraph 9(2) of Schedule 4 to the 1999 Act only talks about the situation when the Adjudicator agrees with the opinion expressed in the Secretary of State's certification, it is clear that the rules required that the Adjudicator puts his mind to the question of certification and cannot just ignore it as he has done in the present case.
8. Further, counsel for the petitioner argued that the Adjudicator had failed to observe the procedural rules in respect of this matter. Part III of the Immigration and Asylum Appeals (Procedure) Rules 2000, paragraph 18 provides inter alia:-

"(1) An appeal from the determination of an adjudicator may be made only with leave of the Tribunal ........

(7) Leave to appeal shall be granted only where -

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

(8) An application for leave to appeal shall be decided by a legally qualified member without a hearing."

The decision of the Immigration Appeal Tribunal as to whether leave to appeal should be granted was determined on 8 May 2002 and notified on 27 May 2002. The application was heard by a legally qualified member in terms of sub-paragraph (8) above. The Tribunal member noted that he was unable to decide from the terms of the Adjudicator's determination that the certificate was mentioned in any way and concluded therefore that it had not been withdrawn. In that circumstance, the Tribunal member decided that the Tribunal had no jurisdiction to entertain an appeal. He therefore dismissed the application for lack of jurisdiction. However, petitioner's counsel submitted that the Tribunal could not properly hold that it had no jurisdiction simply because there was no indication that the certificate was not withdrawn. In terms of the legislation, the only reason for the appeal not to proceed in a certification case was if the Adjudicator agrees with the certification. In this case, the Adjudicator had not done so. The essential duty on the part of the Adjudicator in terms of the Rules was to consider certification. Reference was made to the case of Zenovics (unreported) 7 March 2002 where the Court of Appeal in England considered the question of certification. (However, it is clear from a reading of the Tribunal's decision, and in particular from paragraphs 24, 25 and 26 that the Zenovics case was concerned with the different aspects of the process of certification). Again in the case of Jamali (unreported) 27 December 2001 from the Immigration Appeal Tribunal on 27 December 2001, it appears (from paragraphs 24 onwards) that it is assumed that the Adjudicator will agree or disagree with a certificate and should explain his reasons for doing so. A failure to observe procedural rules in these circumstances should be fatal to the decision of the Adjudicator and the Tribunal. Reference was also made to the Council of Civil Service Unions v Minister for the Civil Service 1985 AC 374 per Lord Diplock at pp.410 - 411 and to Edinburgh District Council v The Secretary of State 1985 S.C. 261 at p.279, 285 and 287. Accordingly, in the petitioner's submission, the Adjudicator had failed in two respects, namely to deal with the certificate and to breach the procedural rules. It was accepted that these two grounds were really aspects of the same point.

9. Counsel for the petitioner then submitted that the effect of either or both of these failures is that there is no determination in existence which can be appealed to the Immigration Appeal Tribunal, and on which the Tribunal could take a view. There is therefore an appeal outstanding against the respondent's decision letter of 13 February 2002, which contains the original refusal and certification. The only person who has the jurisdiction to hear such an appeal is the Adjudicator. The respondent has suggested in his answers to the petition that there can be no prejudice to the petitioner by going straight back to the Immigration Appeal Tribunal. However, the petitioner submitted that the failure by the Adjudicator was so radical that it is not capable of being amended or resuscitated; it could not be discovered whether there was any prejudice or not. There may be evidence concerning the certification which the Adjudicator had not properly considered.
10. The petitioner's counsel's third submission was concerned with what he called the evidential arguments. The respondent had not been present, nor was he represented at the appeal before the Adjudicator on 26 March 2002. In terms of the appropriate guidelines, the Adjudicator may not assume an inquisitorial role in questioning the appellant. The petitioner submitted that the Adjudicator had breached these guidelines because he had questioned the petitioner in a manner which could be said to affect his credibility. In particular, it was clear from paragraph 14 and 15 of the Adjudicator's determination that the petitioner had been cross-examined on two matters, namely on the question of why he had not left Karachi when he had been threatened by his previous assailants, and how he had been able to work as a taxi driver and earn substantial sums of money at a time when he was said to have been in hiding for fear of being further assaulted. Counsel submitted that the purpose of questioning on these topics could only refer to the petitioner's credibility. These matters had not been referred to in the original letter of decision by the respondent; however, they feature significantly in the Adjudicator's determination.
11. The appropriate guidelines of this matter are found in the case of MNM v Secretary of State for the Home Department [2000] INLR 576. In that case the court was in part concerned to consider the conduct of the Special Adjudicator. The Adjudicator had questioned the applicant about certain discrepancies in her asylum interview and concluded that she was not credible. The court found that Adjudicators are not bound to accept accounts of appellants at face value but could and should probe apparent improbabilities. However, the court also emphasised that the Adjudicator should not involve himself directly in questioning the appellants or witnesses unless it was absolutely necessary to enable them to ascertain the truth. Further, it was observed that the Adjudicator should never adopt a hostile attitude. The court went on to provide a variety of guidelines which had to be observed when the Secretary of State was not represented at a hearing, and further indicated that any failure to observe these guidelines would result in there being a real danger that the hearing would be regarded as having been conducted unfairly. In particular, in paragraph (v) of the rubric of the decision (at p.577), the court held inter alia:-

"(v) Where no matters of credibility are raised in the refusal letter but, from reading the papers, the Special Adjudicator considers that matters of credibility do arise, those matters should be pointed out to the appellant's representative and requests should be made that the appellant's represented to address those matters in examination-in-chief or in submissions.

(vi) It is not the function of the Special Adjudicator to adopt an inquisitorial role in an appeal system which is essentially adversarial. It is not the function of a Special Adjudicator to expand upon the refusal letter or raise matters not raised in it, unless there are matters apparent to him from leading the evidence......

(vii) Although it is not the function of the Special Adjudicator to raise matters which may have been raised by the Secretary of State's representative in cross-examination had he been present, a Special Adjudicator can, after having received the evidence or submissions in relation to matters which she had drawn to the appellant's attention, ask questions in order to clarify any matters."

12. Further, in that case the court provided in an annex to its decision what are called the Surendran guidelines which are derived from an earlier case, and on which the instant decision was based. Counsel for the petitioner drew attention in particular to item 6 of the these guidelines which in essence echo the guidelines (or some of them) referred to earlier in the report. Paragraph 6 of these latter guidelines is in the following terms:

"It is our view that it is not the function of a Special Adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and a Special Adjudicator is an impartial judge and assessor of the evidence before him. Where the Home Office does not appear, the Home Office's argument and basis of refusal, as contained in the letter of refusal, is the Home Office's case purely and simply, subject to any other representations which the Home Office may make to the Special Adjudicator. It is not the function of the Special Adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the appellant's representative who should then be invited to make submissions or call evidence in relation thereto......".

13. In the circumstances of the present case counsel submitted that it was clear that evidence and information produced by cross-examination by the Adjudicator resulted in an adverse credibility assessment by him of the petitioner. However, in the original letter of refusal by the respondent, there was no mention of why the petitioner had not moved away from Karachi, or how he had managed to operate as a taxi driver while he was looked for by his assailants. But it was clear from the Adjudicator's decision that a major reason for his rejection of the appeal was his unwillingness to believe the petitioner on these particular points. Accordingly, by acting as an inquisitor and failing to observe the MNM and Surendran guidelines, the Adjudicator had exceeded his jurisdiction and this determination should fall. There is therefore nothing for the petitioner to appeal against and the case should be returned to a different Adjudicator.
14. For the respondents, counsel agreed in general terms with the description of the statutory appeal procedure described by the petitioner. However, he maintained that the essential point in an appeal contemplated in terms of paragraph 9(2) of Schedule 4 to the 1999 Act was that if the Adjudicator agrees with the certification applied by the Secretary of State in his decision letter, there is then no right of appeal. What this meant was simply that if the Adjudicator did specifically agree with the certification, an appeal was not possible. However, if the Adjudicator disagrees with the certification, or if he says nothing about the certification, then the paragraph does not apply, and the appeal to the Immigration Appeal Tribunal will proceed. Paragraph 9(2) in counsel's phrase "carves out" of the general right to appeal a very specific exception, and that is when the Adjudicator particularly agrees with the certification. It must therefore inevitably follow that if the Adjudicator disagrees or stays silent about the certification there is then no such exception and the right of appeal remains. This is a plain reading of the legislation and the courts should be slow to find otherwise as this might prejudice individuals who would otherwise have the right to appeal. Counsel for the respondent maintained that there was no prejudice to the petitioner by such an interpretation demonstrated by the petitioner.
15. Counsel agreed that when the case went to Tribunal there had then been a error in law and that the Tribunal's determination should be reduced. In the second paragraph of the determination of the application dated 8 March 2002, the Immigration Appeal Tribunal notes that there is no mention of the certification and considers that it has not been withdrawn. It was in these circumstances that the legal member of the Immigration Appeal Tribunal decided that the application must be dismissed for lack of jurisdiction. The Tribunal had therefore not had the chance to consider the substantial points in the appeal. Counsel for the respondent then produced a letter from Mr Justice Collins which he said fortified his position. While I can perfectly well understand why Mr Justice Collins should want to write a very clear letter to another person in his organisation on this matter, I am unclear as to why it was produced before another tribunal. I therefore considered that I should simply ignore the contents of that letter, irrespective of its intrinsic merit.
16. Counsel for the respondent therefore submitted that the Immigration Appeal Tribunal was in error, and that his decision should be reduced, under reference to head (d) of the present petition which allows for such other orders as the court thinks fit or just. Counsel for the respondent argued that it would be appropriate to send the case back to the Tribunal. Firstly, it was a basic principle of the judicial review procedure that the court should only interfere where it was necessary to correct the exercise of jurisdiction; in other words, the function of the court is to put the case back to the point where it went wrong and not to a lower or different part of that process. Secondly, Rule of Court 58.3(2) which deals generally with judicial review provides:

"(1) Subject to paragraph (2) an application to the supervisory jurisdiction of the court including an application under section 45(b) of the Act of 1998 (specific performance of statutory duty), shall be made by petition for judicial review.

(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by any enactment."

17. The present application is taken under Rule of Court 58.3(1). In terms of Rules of Court 58.3(2), counsel submitted that where there was another statutory remedy available to the petitioner. Where he had not exhausted any such remedy, the options of judicial review should not be open. In the present case the submissions made by the petitioner can all competently be dealt with by the Immigration Appeal Tribunal, and in view of the terms of the Rules of Court that is where the cause should now be sent. It had not been suggested in the case of Zenovics that it was appropriate to send the case down to a lower level. The case of Jamali was different; it was concerned with an explanation of the reasons given by the Adjudicator. In the present case, the Immigration Appeal Tribunal is perfectly competent to deal with the problem. There is no prejudice to the petitioner because he is put back in the position he was before things went wrong.
18. Turning to the evidential arguments, counsel for the respondent referred to the Minute of Proceedings, which is produced. The matters cited by the petitioner were in his submission merely passages where the Adjudicator was explaining topics which were not new; they had been raised by the petitioner himself in the course of his evidence to his own solicitor. In particular, it is clear from the Minute of Proceedings that the petitioner's solicitor raised in the first instance the question of whether or not it had been possible for the petitioner to have left Karachi at a time when he said that he had been troubled by assailants. Further, the question of how the petitioner was able to drive a taxi round Karachi for three months at a time when people were looking for him was also explored. In these circumstances, the questions asked by the Adjudicator were clearly legitimate for the purpose of clarification of the petitioner's evidence. Equally clearly, it is exactly that sort of clarification which the guidelines allow.
19. I propose to deal firstly with this last matter, concerned with what the petitioner's counsel described as the evidential argument. I can find no substance in the petitioner's argument. The two subjects discussed were clearly raised in the course of the petitioner's initial presentation to the Adjudicator. The questions which the Adjudicator asked were plainly designed to make inquiry into aspects of that presentation which required elucidation. There is nothing in the Minute of Proceedings to suggest that the Adjudicator was acting in a hostile or aggressive fashion. In these circumstances the Adjudicator was plainly acting in conformity with the guidelines laid down in MNM v Secretary of State for the Home Department, and there is no merit in the criticism of his behaviour.
20. However, there is no doubt that the petitioner is right to maintain that the procedure in this case has gone wrong. The undoubted mistake which took place in this case must be laid solely at the door of the Immigration Appeal Tribunal. The error is perhaps understandable because some of the authorities clearly envisage a situation where the Adjudicator will either confirm or reject the certification by the Secretary of State. No doubt also that is often what happens in practice. But a strict reading of paragraph 9(2) of Schedule 4 in the 1992 Act makes it very clear that the only duty expressly contemplated on the part of the Adjudicator is the confirmation of the certification. It is only when that vital step is taken that the right of appeal to the Immigration Appeal Tribunal is withdrawn in terms of the statutory provisions. If that specific step is not taken, then the right of appeal to the Tribunal remains open. It therefore does not matter whether the Adjudicator expressly refuses to confirm the certification or simply ignores it. It is only when he confirms the certification that the statutory prohibition against further appeal is triggered.
21. Accordingly, after the Adjudicator had made his determination in the present case, the petitioner had a clear right of appeal to the Immigration Appeal Tribunal. In considering that application in the first instance, the legally qualified member rejected the application purely on the basis that the supposed failure by the Adjudicator to confirm the certification indicated that the right to appeal had been withdrawn and the Tribunal had no jurisdiction to hear the appeal. As I have indicated above, this was plainly wrong. It is therefore appropriate that this court should return the petitioner's application to the point where it went wrong. There would be no point in returning the matter to another Adjudicator. The determination by the Adjudicator in the present case was correct. Further, this Court, as the Rules of Court make plain, has in effect a supervisory role in applications of this sort, and should therefore be concerned to interfere in the principal process as little as possible. This must be particularly so when there appear to be no cogent arguments of any prejudice that will be caused to the applicant by undertaking such a course. In these circumstances, I have no hesitation in making an order that the matter be returned to the Immigration Appeal Tribunal for disposal as it sees fit.