Upper Tribunal (Immigration and asylum chamber), 2019-03-29, JR/03954/2018
| Jurisdiction | UK Non-devolved |
| Date | 29 March 2019 |
| Published date | 05 November 2019 |
| Hearing Date | 29 March 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/03954/2018 |
Case Number: JR/3954/2018
IN THE UPPER TRIBUNAL
JR/3954/2018
Field House,
Breams Buildings
London
EC4A 1WR
29 March 2019
Before
MR JUSTICE DINGEMANS SITTING AS AN UPPER TRIBUNAL JUDGE
Between
ZZ
Claimant
and
The Secretary of State for the Home Department
Defendant
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Raza Husain QC and Duran Seddon instructed by Gherson solicitors appeared behalf of the Applicant.
Neil Sheldon QC instructed by the Government Legal Department appeared on behalf of the Respondent.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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Mr Justice Dingemans:
Introduction
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This is the hearing of a claim for judicial review of the refusal of the Secretary of State to consider further representations in support of ZZ’s claim for asylum because ZZ has outstanding an appeal to the Upper Tribunal against the Secretary of State’s earlier decision to refuse asylum. The Secretary of State’s decision was affirmed by the First Tier Tribunal, but ZZ has been granted permission to appeal to the Upper Tribunal.
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ZZ has the benefit of an anonymity order made earlier in the proceedings. There is in this case a higher risk of jigsaw identification because of information given in earlier proceedings and judgments. In these circumstances and with the agreement of the parties I will avoid referring to the relevant facts as far as I can.
The factual background
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ZZ’s extradition to a category 1 state was sought pursuant to a European Arrest Warrant. His extradition was ordered in Westminster Magistrates’ Court and an appeal to the Administrative Court was unsuccessful. Section 36(3) of the Extradition Act 2003 (“the 2003 Act”) requires the return of ZZ within 10 days of the order for extradition becoming final.
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ZZ made a claim for asylum. This had the effect of extending the 10 day period pursuant to section 39(3)(b) of the 2003 Act. The Secretary of State refused the asylum claim. ZZ appealed to the First Tier Tribunal. The First Tier Tribunal dismissed ZZ’s appeal. ZZ sought permission to appeal. After the decision of the First Tier Tribunal ZZ obtained a further statement from a witness which ZZ said supported his claim for asylum and he also relied on a further development in the relevant country. (The issue of the effect of the further witness statement and the further development is not before me and I do not comment on it). ZZ obtained permission to appeal to the Upper Tribunal to challenge the decision of the First Tier Tribunal. ZZ was refused permission to rely on the further witness statement on the appeal. This was because the only basis of a challenge to the decision of the First Tier Tribunal is for an error of law, and the further witness statement was not before the First Tier Tribunal so it could not support an argument that there was an error of law made by the First Tier Tribunal.
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ZZ therefore sent the further witness statement and other material to the Secretary of State as further representation for a claim for asylum. The Secretary of State refused to give advance consideration to further submissions and evidence in support of a fresh claim for asylum saying “unfortunately we are unable to accept this claim”. In letters this was explained to be because of the outstanding application for permission to appeal to the Upper Tribunal and, after permission to appeal was granted, because of the outstanding appeal.
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The hearing of the appeal in the Upper Tribunal is scheduled in late March 2019 and this hearing was before me on 20 March 2019.
Issues
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If ZZ’s claim for asylum is determined by the Upper Tribunal against him he is concerned that the Secretary of State may not have time to consider his further representations and accept, as ZZ contends that he should, those further representations as amounting to an asylum claim. ZZ is also concerned that if the Secretary of State does consider the further representations and then decides that the further representations do not amount to a fresh claim then ZZ may be extradited before he has an opportunity to challenge that decision in public law proceedings. ZZ contends that in these circumstances the Secretary of State has a public law duty to avoid the risk that ZZ might be extradited when he should be protected by the 1951 Convention Relating to the State of Refugees (“the Refugee Convention”) and its implementing legislation and rules. ZZ also contends that the Secretary of State wrongly fettered his decision to entertain ZZ’s claim because of the existing policy to wait until the appeal to the Upper Tribunal has been heard.
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The Secretary of State contends that there is no public law duty on the Secretary of State to make a decision, in part because ZZ’s case depends on hypothetical future events. The Secretary of State contends that ZZ’s case will be fairly determined, if and when it becomes necessary to do so, at the appropriate time. The Secretary of State contends that there was no wrongful fettering of his discretion, because he acted properly in accordance with his policy.
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I am very grateful to Mr Raza Hussain QC and Mr Neil Sheldon QC and their respective legal teams for their helpful written and oral submissions.
Relevant statutory provisions and provisions of the Immigration Rules
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Sections 36 and 39 of the Extradition Act 2003 provide as follows:
36 Extradition following appeal
(1) This section applies if—
(a) there is an appeal to the High Court under section 26 against an order for a person's extradition to a category 1 territory, and
(b) the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.
(2) The person must be extradited to the category 1 territory before the end of the required period.
(3) The required period is—
(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or
(b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.
(3A) If the day referred to in paragraph (a) of subsection (3) is earlier than the earliest day on which, by reason of an order under section 36B or 36C, the extradition order may be carried out (“the postponed date”), that paragraph has effect as if it referred instead to the postponed date.
(4) …
(5) The decision of the High Court on the appeal becomes final—
(a) when the period permitted for applying to the High Court for leave to appeal to the Supreme Court ends, if there is no such application;
(b) when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the Supreme Court for leave to appeal;
(c) when the Supreme Court refuses leave to appeal to it;
(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the Supreme Court is granted, if no such appeal is brought before the end of that period.
(6) These must be ignored for the purposes of subsection (5)—
(a) any power of a court to extend the period permitted for applying for leave to appeal;
(b) any power of a court to grant leave to take a step out of time.
(7) The decision of the [Supreme Court]2 on the appeal becomes final when it is made.
(8) If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.
39 Asylum claim
(3) If—
(a) an order is made under this Part for a person to be extradited in pursuance of a Part 1 warrant, and
(b) the person has made an asylum claim (whether before or after the issue of the warrant),
the person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this.
(4) …
(5) If the Secretary of State allows the asylum claim, the claim is finally determined when he makes his decision on the claim.
(6) If the Secretary of State rejects the asylum claim, the claim is finally determined—
(a) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;
(b) when the period permitted for appealing against the Secretary of State's decision on the claim ends, if there is such a right but there is no such appeal;
(c) when the appeal against that decision is finally determined or is withdrawn or abandoned, if there is such an appeal.
(7) An appeal against the Secretary of State's decision on an asylum claim is not finally determined for the purposes of subsection (6) at any time when a further appeal or an application for leave to bring a further appeal—
(a) has...
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