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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Zenovics, R (on the application of) v Secretary of State for the Home Department [2002] EWCA Civ 273 (7th March, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/273.html Cite as: [2002] EWCA Civ 273 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEALS TRIBUNAL
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MAY
and
LORD JUSTICE JONATHAN PARKER
____________________
THE QUEEN ON THE APPLICATION OF ALEKSEJS ZENOVICS | Appellant | |
- and - | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew HUNTER (instructed by Treasury Solicitor) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann:
This is the judgment of the Court.
(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 Legislative background
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 theHuman 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”.
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.
(i) Subparagraphs (4) and (5) refer to two different claims : one under the Refugee Convention and one under the Human Rights Convention. An appellant before an adjudicator may make a claim under either or under both or under neither.
(ii) Where an appellant makes a claim under neither, paragraph 9 simply has no application. Paragraph 22 gives the Immigration Appeal Tribunal jurisdiction to consider an appeal by such a person.
(iii) The appeal referred to in paragraph 9(1) is the appeal to the adjudicator.
(iv) The words “the claim” in paragraph 9(2) refer back to “that claim” in paragraph 9(1).
(v) The certificate of the Secretary of State relates to a claim not to an appeal.
One or Two claims?
Two appeals?
The Tribunal decision
“If, on an appeal to which this paragraph applies, the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate paragraph 22 does not confer on the appellant any right of appeal to the Immigration Appeal Tribunal”.
“If, on an appeal to which this paragraph applies, the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate paragraph 22 does not confer on the appellant any right of appeal to the Immigration Appeal Tribunal in respect of that claim”.