R v Special Adjudicator, ex parte Gnanavarathan (Pitchaiappah)
| Jurisdiction | England & Wales |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Nourse, Glidewell, Simon Brown LJJ
J Walsh for the applicants
Miss L Giovannetti for the respondent
Cases referred to in the judgments:
R v Secretary of State for the Home Department ex parte Senay Mehari and orsWLR [1994] 2 WLR 349: [1994] Imm AR 151.
Secretary of State for the Home Department v Khalife Abdi and anr [1994] Imm AR 402.
R v Secretary of State for the Home Department ex parte Gnanavarathan (unreported, QBD, 30 August 1994).
R v Secretary of State for the Home Department ex parte Sebastian Norbert (unreported, QBD, 2 September 1994).
Ivanov (unreported) (10355)
Political asylum — without foundation appeals — Italy and France considered by Secretary of State to be safe third countries — special adjudicator upheld Secretary of State's certificates — duty of special adjudicator to give full reasons if conclusions different from those of other special adjudicators whose determinations were put before him — whether a duty of special adjudicator to search files to find relevant determinations by other adjudicators — whether other determinations on which he relied should have been put to the parties.
Renewed application for leave to move for judicial review following dismissals by Popplewell J. The applicants were citizens of Sri Lanka. Their applications for asylum had been characterized as ‘without foundation’ by the Secretary of State: he concluded both applicants could be returned to safe third countries, the first applicant to Italy, the second applicant to France.
On appeal to a special adjudicator, in the case of the first applicant, a number of determinations were put before him in which other special adjudicators had concluded Italy was not a safe country. The adjudicator recorded he had taken those into consideration, but nevertheless concluded that Italy was a safe country. Counsel submitted that where a special adjudicator came thus to a conclusion different from that of some of his colleagues on the same background facts he was under an obligation to give full reasons, which he had failed to do.
In the case of the second applicant, no such determinations by other special adjudicators were put before him. He relied however on a determination by the Tribunal which he had not put to the parties and on which he had not invited submissions, which counsel submitted was an error of law.
Held
1. Where an adjudicator came to conclusions different from that of other adjudicators whose determinations were before him, he had arguably an obligation to give full reasons for his different conclusions.
2. An adjudicator however had no duty to search files to find other possibly relevant determinations if they were not put before him by the parties.
3. If he however chose to rely on a determination within his knowledge and not put to him by the representatives, he had an obligation to draw their attention to it and invite submissions from them.
Glidewell LJ: These are renewed applications for judicial review following refusals in each case by Popplewell J in the case of Mr Gnanavarathan on 30 August 1994 and in the case of Mr Norbert on 2 September 1994. The facts relating to the two applicants can be stated quite shortly. Mr Gnanavarathan is a Sri Lankan Tamil aged 26. He arrived at London Heathrow Airport on 21 March 1994, having travelled from Sri Lanka via Singapore and Italy. He immediately claimed asylum. The Home Secretary certified that the claim was without foundation as Italy is, in his view, a safe third country. Therefore he gave no substantive consideration to Mr Gnanavarathan's claim. An appeal against that decision was dismissed by Mr Timmons, a special adjudicator, on 22 July 1994. The application for leave for judicial review was made on 22 August.
As far as Mr Norbert is concerned, he also is a Sri Lankan Tamil aged 28. Indeed, the circumstances of these two cases are almost identical. He arrived at London Heathrow Airport via Russia and France on 6 June 1994 and immediately claimed asylum. In his case, the Home Secretary certified that his claim was without foundation as France is a safe third country. He therefore gave no substantive consideration to the claim. The appeal was dismissed by the same special adjudicator, Mr Timmons, on the same day, 22 July 1994. The application for judicial review was made on a date which I cannot read but I think may have been 12 August 1994.
It is accepted in each case that the applicants could have, and did not, seek asylum respectively in Italy and France. It is necessary to say something briefly about the applicable law.
If a person who seeks leave to enter the United Kingdom and claims asylum here is refused leave to enter, section 8 of the Asylum and Immigration Appeals Act 1993 gives him a right to appeal to a special adjudicator which can be exercised whilst he is still in the United Kingdom. From the decision of a special adjudicator, if it be adverse to the applicant, there is a further right of appeal to an Immigration Appeal Tribunal under section 20 of the Immigration Act 1971. There is, however, an exception to that. By paragraph 5 of schedule 2 to the 1993 Act, the Home Secretary may issue a certificate that:
‘…in his opinion, the person's claim on the ground that it will be contrary to the United Kingdom's obligations under the Convention for him to be removed from the United Kingdom is without foundation.’
Such a claim is without foundation if ‘it does not raise any issue as to the United Kingdom's obligations under the Convention’. There is a right to appeal against such a certificate to a special adjudicator, but by paragraph...
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