R (L and Another) v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 2003 |
| Neutral Citation | [2003] EWCA Civ 25 |
| Docket Number | Case No: C2/2002/2644/2645 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2003 |
[2003] EWCA Civ 25
Lord Phillips Of Worth Matravers, Mr
Lord Justice Waller And
Lord Justice Sedley
Case No: C2/2002/2644/2645
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Goldring
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Frances Webber and Ms Louise Hooper (instructed by Morgan Hall for the Appellants) Miss Monica Carss-Frisk, QC and Miss Samantha Broadfoot (instructed by The Treasury Solicitor for the Respondents)
Lord Phillips, MR :
This is the judgment of the court to which all members have contributed.
The applicants before the court are mother ('ZL') and son ('VL'). In form they seek permission to appeal against a judgment of Goldring J. delivered on the third day of last month. In reality they renew applications for permission to seek judicial review of decisions of the respondent, the Secretary of State for the Home Department, to reject the applicants' asylum and human rights claims and to certify that those claims are 'clearly unfounded', pursuant to s.115(6) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'). That section introduces a new regime intended to ensure that those who make claims for asylum that are clearly unfounded can be promptly removed. This is achieved by requiring such persons to pursue any statutory rights of appeal that they enjoy from outside the jurisdiction rather than suspending their removal pending the resolution of their appeals.
These are the first cases under the 2002 Act to reach this court. They are important because the applicants complain that, insofar as procedures have been followed in implementing the new regime, those procedures are unfair, and insofar as no procedures have been introduced, this also is unfair. The applicants contend that, until fair procedures are in place, decisions such as those taken in their cases are and will be unlawful.
The applicants are members of an extended family, most of whom arrived in this country on 8 November 2002 from the Czech Republic and sought asylum. The head of the family, ZL's husband, had arrived some days earlier, with two dependants. His asylum and human rights applications were rejected by the Secretary of State but, because he arrived before the 2002 Act came into force, he is entitled to remain in this country, pending the hearing of the appeal which he is bringing before an adjudicator.
The applicants claimed asylum immediately on arrival and were at once moved to Oakington. On 11 November they were there interviewed in relation to their asylum claims. On 14 November their claims were rejected, certificates were issued under s.115(6) of the 2002 Act and they were issued with removal directions. ZL has since been given an undertaking by the Secretary of State that she and her dependants will not be removed pending the determination of her husband's appeal. We have been informed that, after the hearing before us, in January 2003, VL returned voluntarily to the Czech Republic. He has not sought permission to withdraw his appeal before us and we shall, accordingly, rule upon it in this judgment.
The statutory framework
A person who is refused leave to enter the UK 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 Refugee Convention: s.69(1), Immigration and Asylum Act 1999 ("the 1999 Act"). A similar right of appeal exists against removal directions to an illegal entrant by virtue of s.69(5) of the 1999 Act.
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 UK, acted in breach of his human rights, may appeal to an adjudicator against that decision: s.65(1) of the 1999 Act.
The Lord Chancellor is empowered to make rules for regulating the exercise of the rights of appeal conferred by Part IV of the 1999 Act (including ss.65 and 69) by Schedule 4 paragraph 3 of the Act. The current rules made under paragraph 3 are the Immigration and Asylum Appeals (Procedure) Rules 2000.
The procedure rules provide inter alia for notice of appeal to be given where an appellant makes an appeal within the UK, no later than 10 days after notice of the decision was received (rule 6(1)); and from outside the UK against a decision made in-country not later than 28 days after departure (rule 6(2)(a)). There is no time limit for the respondent to forward the appeal documents to the appellate authority under rule 10, nor any time limits within which appeals are to be heard and determined.
The appeals provisions of the 1999 Act will be repealed and replaced by Part 5 of the 2002 Act as from a date to be appointed: ibid s.114. S.115 (with which this case is concerned) came into force on 7 November 2002 on the passing of the Act, by virtue of s.162(2)(w).
Section 115(1) of the Nationality, Immigration and Asylum Act 2002 provides:
"A person may not bring an appeal under section 65 or 69 of the Immigration and Asylum Act 1999 (human rights and asylum) while in the United Kingdom if—
(a) the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded, and
(b) the person does not have another right of appeal while in the United Kingdom under Part IV of that Act."
These applications concern paragraph (a).
Section 115(5) provides:
"Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal or raises a question under section 65, 69 or 77 of that Act while outside the United Kingdom, the appeal or question shall be considered as if he had not been removed from the United Kingdom."
Section 115(6) provides:
"If the Secretary of State is satisfied that a person who makes a human rights claim or an asylum claim is entitled to reside in a State listed in subsection (7), he shall issue a certificate under subsection (1) unless satisfied that the claim is not clearly unfounded."
Section 115(7) lists ten States that will accede to the EU in 2004. They include the Czech Republic.
Subsection (8) provides:
"The Secretary of State may by order add a State, or part of a State, to the list in subsection (7) if satisfied that:
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention."
The issues
The applicants seek to quash the decisions of the Secretary of State to refuse their asylum applications and to certify their claims as clearly unfounded on the following grounds:
i) their claims were processed, rejected and certified before the 2002 Act had been promulgated;
ii) the decisions were taken in the absence of procedural safeguards;
iii) the procedures to which the applicants were subjected were unfair;
iv) the decisions to certify were unsound.
The late promulgation of the 2002 Act
The 2002 Act received the Royal Assent on 7 November 2002. The provisions of s.115 were brought into immediate effect. The Act was not, however, published by the Queen's Printer until 28 November 2002. It was in the interim between these two dates that the procedures with which this appeal is concerned were carried out. By virtue of the new provisions of s.115 the effect of the decisions that the applications were clearly unfounded was to suspend all rights of appeal while the applicants remained in the United Kingdom. What, if anything, is the effect of the delay in promulgating the Act?
It is beyond argument that an Act of Parliament takes legal effect on the giving of the Royal Assent, irrespective of publication. This rule of our domestic law is not, however, echoed in the jurisprudence of the European Court of Human Rights. In cases where the justification for a prima facie invasion of a Convention right depends on the State's having acted "in accordance with a procedure prescribed by law" (Article 5) or "in accordance with the law" (Article 8) or "as…prescribed by law" (Articles 9, 10 and 11), the Court declines to recognise national laws which are not adequately accessible: see Sunday Times v United Kingdom (1979) 2 EHRR 245, para. 49. The principle of legal certainty is also a pillar of the law of the European Union: see Administration des Douanes v Gondrand Frères [1981] ECR 1931, paras. 17–18. The Supreme Courts of the United States and Canada, while recognising, like the Strasbourg Court, that common law doctrines may pass the test of legal certainty, have likewise set their faces against laws which cannot be known with precision: see Grayned v Rockford 408 US 104, 108 (1972); R v Thomsen [1988] 1 SCR 640, 650–1. Where it has been within the jurisdiction of the English courts to rule on such issues, they too have made it clear that legal certainty is an aspect of the rule of law: see Black Clawson Ltd v Papierwerke AG [1975] 591, 638, per Lord Diplock.
We mention this weight of authority because the non-promulgation of a statute which has been enacted by Parliament with (in part or in whole) immediate effect is a matter of constitutional importance which goes well beyond such questions as whether lawyers can nevertheless work out from Hansard what the Act in its final form will say....
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