R Aleksejs Zenovics v Secretary of State for the Home Department [CA (Civil), 07/03/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann |
| Judgment Date | 07 March 2002 |
| Neutral Citation | [2002] EWCA Civ 273 |
| Docket Number | Case No: C/01/1433 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2002 |
[2002] EWCA Civ 273
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEALS TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice May and
Lord Justice Jonathan Parker
Case No: C/01/1433
Manjit S GILL Q.C. and Emeka PIPI (instructed by Ned & Chucks) for the Appellant
Andrew HUNTER (instructed by Treasury Solicitor) for the Respondent
This is the judgment of the Court.
This appeal by Mr Zenovics from the Immigration Appeal Tribunal arises out of badly drafted legislation. The Tribunal held with manifest regret that the effect of the legislation was to deprive it of jurisdiction to hear his appeal. It regarded this as producing an unfair result. It suggested that future unfairness could be avoided if the Home Secretary adopted a certain policy and applied it. The Home Secretary has we understand done this. However that does not help Mr Zenovics.
He claimed he was a refugee as defined in the Refugee Convention and sought asylum here. He also claimed that if he were returned to Latvia this would involve a breach of the Human Rights Convention.
On 2 October 2000 a number of things happened.
(i) Most of the Human Rights Act 1998 and the human rights provisions of the Immigration and Asylum Act 1999 came into force.
(ii) The Home Secretary rejected his claim under the Refugee Convention.
(iii) The Home Secretary certified that in his opinion, the immigrant's claim under the Refugee Convention was one to which subparagraph (4) of paragraph 9 of the 4th Schedule to the Immigration and Asylum Act 1999 applied and subparagraph (7) of that paragraph did not apply.
(iv) The Home Secretary rejected the claim under the Human Rights Convention.
(v) An Immigration Officer issued directions for Mr Zenovics' removal to Latvia because he was an illegal entrant.
(vi) The Refugee Legal Centre signed a notice of appeal on behalf of Mr Zenovics claiming that his removal would involve a breach of the Refugee Convention and the Human Rights Convention.
The appeal came before an adjudicator. He did not accept that the immigrant was a refugee and held that the Home Secretary was right to certify the claim under the Refugee Convention. So that was the end of the road so far as Mr Zenovics' claim to be a refugee was concerned. He accepts that before us.
The immigrant's claim under the Human Rights Convention was also dismissed by the adjudicator. The immigrant wished to appeal further to the Tribunal. The Home Secretary had not issued a certificate in relation to that claim and so the adjudicator had not been required to decide whether the issue of such a certificate was justified.
Now comes the rub. The Tribunal held that the effect of the certification by the Home Secretary of the claim under the Refugee Convention was to deprive the Tribunal of any jurisdiction to hear an appeal against the rejection of the claim under the Human Rights Convention. It is the correctness of that decision which is the issue in this appeal.
The Legislative background
Parliament amends the statutes relating to immigration with great frequency. The present case turns on the Immigration and Asylum Act 1999 as it was originally enacted. It has since been amended by the Race Relations (Amendment) Act 2000. There are now proposals to amend it further. We cite the 1999 Act in its original form:
s.58—(2) Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part.
—(3) Part II of Schedule 4 makes provision as to the effect of appeals.
—(4) Part III of Schedule 4 makes provision—
(a) with respect to the determination of appeals under this Part; and
(b) for further appeals.
s.65—(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision …
(2) … an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.
(4)The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground.
(6) "Contrary to the Convention" means contrary to the United Kingdom's obligations under the Refugee Convention
s.66–(1) This section applies if directions are given for a person's removal from the United Kingdom—(a) on the ground that he is an illegal entrant …
s.69–(5) If directions are given as mentioned in section 66(1) for the removal of a person from the United Kingdom he may appeal to an adjudicator on the ground that his removal in pursuance of the directions would be contrary to the Convention".
The Fourth Schedule to the Act contains important provisions in relation to appeals:
9 (1). 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 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.
(2) If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.
(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.
(4) This sub-paragraph applies to a claim under the Refugee Convention if –
(a) it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion;
(b) or it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist.
(5) This sub-paragraph applies to a claim under the Human Rights Convention if –
(a) it does not disclose a right under the Convention; or
(b) it does disclose a right under the Convention, but the claim is manifestly unfounded.
(6) This sub-paragraph applies to a claim if –
(a) it is made at any time after the appellant –
(i) has been refused leave to enter the United Kingdom under the 1971 Act;
(ii)has been recommended for deportation by a court empowered by that Act to do so;
(iii) has been notified by the Secretary of State's decision to make a deportation order against him under section 5 (1) of the 1971 Act as a result of his liability to deportation; or
(iv) has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act;
(b) it is manifestly fraudulent, or any of the evidence adduced in its support is manifestly false; or
(c) it is frivolous or vexatious.
(7) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent.
(8) "Contrary to the Convention" means contrary to the United Kingdom's obligations under the Refugee Convention or the Human Rights Convention.
22.(1) … any party to an appeal … to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
The 1999 Act as it stood had a number of features.
Various sections in Part IV of the Act give a right to appeal to an adjudicator against a variety of administrative decisions affecting an immigrant. Such a right of appeal may exist on grounds which have nothing to do with a claim ("a non-Convention claim") under the Human Rights Convention or a claim under the Refugee Convention. For reasons which we shall give later in this judgment, like the Tribunal we consider that the scheme of the Act is that in relation to any one administrative decision, there should only be one appeal to an adjudicator, albeit that this could be on a number of grounds which might be unrelated or related.
Paragraph 22 is in Part III of Schedule 4. That Part is introduced in section 58(4) of the Act as making provisions for appeals under this Part—presumably Part IV of the 1999 Act. Subject to any requirement of any rule, paragraph 22 gives a right of appeal to the Immigration Appeal Tribunal from the decision of an adjudicator on appeal to any party to that appeal who is dissatisfied with the adjudicator's determination.
This is, we think, the first time that the right of appeal to the Immigration Appeal Tribunal is to be found, not in the main Act, but in a Schedule.
Paragraph 9 is in Part I of Schedule 4. That Part is introduced in section 58(2) of...
To continue reading
Request your trial
-
R (Jones) v Ceredigion County Council
...46 Mr Giffin also seeks to derive further support for this approach from R (Zenovics) v Secretary of State for the Home Department [2002] EWCA Civ 273. Again, the situation is not wholly analogous, not least because one of the considerations in Zenovics was that the narrower construction wo......
-
R (Borak) v Secretary of State for the Home Department
...not inconsistent with the decision of this court in R (on the application of) v Zenovics v Secretary of State for the Home Department [2002] EWCA Civ 273. 22 As we have seen, however, the judge was persuaded that he should adopt a "purposive" approach to construction, the purpose being to a......
-
Mrs S (in the name of Mr S, deceased) CI 1737 2015
...required in order to give effect to the legislator’s intention (approved in R (Zenovics) v Secretary of State for the Home Department [2002] EWCA Civ 273, [2002] EWCA Civ 273). 91. Parliament has had many opportunities to re-draft the definition of pneumoconiosis so as to omit “dust reticul......
-
Mrs S (in the name of Mr S, deceased) v Secretary of State for Work and Pensions
...required in order to give effect to the legislator’s intention (approved in R (Zenovics) v Secretary of State for the Home Department [2002] EWCA Civ 273, [2002] EWCA Civ 273). CI/1737/2015 21 Mrs S (in the name of Mr S, deceased) v Secretary of State for Work and Pensions [2016] UKUT 0485 ......