Upper Tribunal (Immigration and asylum chamber), 2016-06-17, IA/24389/2014
| Jurisdiction | UK Non-devolved |
| Date | 17 June 2016 |
| Published date | 11 October 2017 |
| Hearing Date | 05 May 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/24389/2014 |
Appeal Number: IA243892014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA243892014
THE IMMIGRATION ACTS
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Heard at Bennett House, Stoke-on-Trent |
Decision & Reasons Promulgated |
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On Thursday 5 May 2016 |
On 17 June 2016 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
N V
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms G Loughran, Counsel, instructed by Wilson solicitors LLP
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this is a protection based claim it is appropriate to continue that anonymity direction.
DECISION AND REASONS
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The Appellant challenges the decision of First-tier Tribunal Judge Levin promulgated on 9 February 2015. Judge Levin dismissed the Appellant's appeal on a preliminary issue, finding that there was no valid in country right of appeal. Permission to appeal was granted by First-tier Tribunal Judge Zucker on the basis that it was arguable that certification or purported certification was of no effect for the reasons given in the Appellant’s grounds. The matter comes before me to decide whether Judge Levin’s decision contains a material error of law and, if it does, to either re-determine the appeal or remit it to the First-tier Tribunal for redetermination.
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The hearing before me proceeded on the basis of legal submissions on the fundamental issue whether there is a valid in country right of appeal in this case. The issue is therefore one of law, applying the relevant statute and case law. As such, little is to be gained from an analysis of Judge Levin’s decision. If he is right that there is no valid right of appeal in country in this case, then, even if there were an error in his reasoning, this could not be material. If he is wrong, then since he did not go on to determine the substantive issues in the appeal, the appeal should be remitted for re-hearing before the First-tier Tribunal. Both representatives agreed that this would be the appropriate course. Therefore, although Ms Loughran did make some limited submissions about what she says are errors in Judge Levin’s reasoning, I do not need to deal with those.
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The issue as formulated in discussions at the hearing is as follows. Is the certification contained in the original decision made by the Respondent overtaken by a later human rights claim which is however made prior to the lodging of the appeal?
Factual background
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As this is an issue of law, I do not need to go into the factual background of the Appellant’s case in detail. It is, however, necessary to deal with certain aspects of the Respondent’s decision making process and the Appellant’s claim(s) in order to deal with the way in which the relevant legal provisions apply.
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The Appellant is a citizen of Iran. She arrived in the UK on the Eurostar on 14 June 2013 and claimed asylum. Enquiries carried out by the Respondent’s officers ascertained that she had previously claimed asylum in Italy. Her case is therefore a so-called “Third Country” case.
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On 14 August 2013, the Respondent served the Appellant with a decision refusing her leave to enter the UK and giving notice of her removal to Italy (“the First Immigration Decision”). The Appellant was not removed on that occasion as she attempted suicide. Another decision was made on 27 August 2013 again refusing her leave to enter and again directing her removal to Italy (“the Second Immigration Decision”). It is not entirely clear to me why the Respondent made the Second Immigration Decision but nothing turns on that. The First and Second Immigration Decisions both include a certificate under paragraph 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004 (“the 2004 Act”) which I set out below in the section dealing with the legislative framework.
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On 4 July 2013, the Appellant solicitors made a human rights claim (that is to say a claim that her removal to Italy would breach her human rights) (“the First Human Rights Claim”). The First Human Rights Claim was in brief form and simply asserted that removal to Italy would breach the Appellant’s human rights under Article 3 ECHR due to the lack of appropriate support for asylum seekers in that country.
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By letter wrongly dated 8 May 2013 but apparently served on 24 July 2013, the Respondent rejected the Appellant’s First Human Rights Claim, finding that there would be no breach of Article 3 ECHR by removal to Italy and certified the First Human Rights Claim under paragraph 5(4) of Schedule 3 to the 2004 Act (“the First Certification Decision”). The Respondent relied in so doing on the Court of Appeal’s judgment in EM (Eritrea) & others v SSHD [2012] EWCA Civ 1336 (“EM (Eritrea)”). At that time, there was an application for permission to appeal the Court of Appeal’s judgment in that case pending in the Supreme Court.
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The First Certification Decision preceded in time the First and Second Immigration Decisions. It is clear from the face of the First Certification Decision that what was there under consideration was a human rights claim that removal to Italy would breach the Appellant’s human rights by virtue of the conditions in that country. It is also important to note that the certification contained in the First Certification Decision is under paragraph 5(4) of Schedule 3 to the 2004 Act (see in particular [23] to [24] of that letter).
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On 11 September 2013, the Appellant’s solicitors made another human rights claim this time in more detailed form as part of a letter before action (“the Second Human Rights Claim”). By the time of the Second Human Rights Claim, the Supreme Court had granted permission to appeal the Court of Appeal’s judgment in EM Eritrea. By letter dated 11 September 2013, the Respondent rejected the Second Human Rights Claim and again certified that claim under paragraph 5(4) of Schedule 3 to the 2004 Act (“the Second Certification Decision”).
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On 12 September 2013, the Appellant lodged a judicial review claim challenging the First and Second Immigration Decisions. A further letter was sent on 3 October 2013 again rejecting the Appellant’s human rights claim and certifying it under paragraph 5(4) of Schedule 3 to the 2004 Act (“the Third Certification Decision”). Both the Second and Third Human Rights Claims and the Second and Third Certification Decisions post-date the First and Second Immigration Decisions. The Appellant also challenged the Second and Third Certification Decisions in the judicial review.
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On 19 February 2014, the Supreme Court handed down judgment in EM (Eritrea) ([2014] UKSC 2) overturning the Court of Appeal’s judgment and providing guidance about the correct approach to consideration of human rights claims in Third Country cases. As a result, a consent order was signed on 13 May 2014 providing that the judicial review be withdrawn on the following proviso:-
“UPON the Defendant having withdrawn the decisions dated 11 September and 3 October 2013 on the Claimant’s human rights claim and agreeing to make a decision on the Claimant’s human rights claim, including consideration of the material submitted by the Claimant in the course of these proceedings and any further material submitted by the Claimant within 28 days of signature of this order”
It is worth noting that the effect of the consent order was to withdraw the Second and Third Certification Decisions. There is no mention in the consent order of the First Certification Decision which does not appear to have been the subject of the judicial review challenge (see [2] of the Appellant’s grounds of appeal).
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This appeal was lodged on 13 June 2014. The appeal was said to be against the First and Second Immigration Decisions.
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For completeness, I note that the Respondent issued a further letter dated 28 September 2014, in accordance with the consent order dated 13 May 2014, again certifying the Appellant’s Second and Third Human Rights Claims under paragraph 5(4) of Schedule 3 to the 2004 Act.
Legislative Framework
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The right of appeal in this case arises under the appeal provisions prior to the Immigration Act 2014. The right of appeal is therefore generated by an “immigration decision” of a kind set out in section 82(2) Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
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It is common ground that the First and Second Immigration Decisions, being a refusal of leave to enter are immigration decisions within section 82(2)(a) of the 2002 Act and the Appellant therefore has a right of appeal. There are however limitations on that right of appeal.
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Section 89(1) of the 2002 Act provides as follows:-
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