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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Farkondeh, R (on the application of) v Special Adjudicator & Anor [2002] EWCA Civ 788 (9 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/788.html Cite as: [2002] EWCA Civ 788

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE KEITH)

		Royal Courts of Justice Strand London WC2 Thursday, 9th May 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of Keith J given on 14th February 2002, when he dismissed this applicant's application for judicial review. Permission to appeal was refused on the papers by myself on 12th April 2002.
2. The applicant is a citizen of Iran. She arrived in the United Kingdom clandestinely on 23rd October 2000 and on the following day applied for asylum on the principal ground that she was a lesbian and feared persecution because of her sexual orientation if she were returned to Iran. She also claimed to fear persecution if she were returned as a failed asylum seeker. The Secretary of State refused the asylum claim but also issued a certificate under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999. The adjudicator dismissed her appeal and upheld the Secretary of State's certificate.
3. The applicant's application for permission to seek judicial review of the adjudicator's determination was at first refused on the papers by Scott Baker J. Upon a renewed application Goldring J granted permission but only upon what Keith J was to call the "certification issue". That is, the applicant was permitted to advance her contentions to the effect that the certificate was unlawful. So that was the issue with which the learned judge had to deal. As is well-known, the effect of such a certificate, if the adjudicator agrees with it, is that any further right of appeal to the tribunal is barred to the appellant. In addition -- though it is not, I think, necessary to go into the details -- once the adjudicator agrees with the certificate, the applicant's entitlement to welfare support under Part VI of the 1999 Act comes to an end.
4. I should set out the relevant statutory provisions. Paragraph 9(1) of Schedule 4 to the Act of 1999 provides as follows:

"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 to 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 [with the opinion expressed in the Secretary of State's certificate], paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal."

5. Then I may go to subparagraph (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 of 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."

6. The terms of paragraph 9(7) are as follows:

"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."

7. The letter in which the Secretary of State notified the applicant that her claim was certified was dated 29th November 2000 and, so far as relevant, was in these terms:

"In addition the Secretary of State certifies that your claim is one to which paragraph 9(6)(c) of Schedule 4 to the 1999 Act applies because your claim is~... "

8. Then there is simply a dash and a semi-colon. The letter continues:

"... and that your claim is one to which paragraph 9(7) does not apply because you have adduced no evidence relating to torture in Iran."

9. There is clearly a grammatical lacuna in the letter where, as I said, the dash appears.
10. The first point taken by Mr Khubber on behalf of the applicant is that the certificate is defective, first because it does not indicate the basis for certification under paragraph 9(6)(c). Was it frivolous or was it vexatious? Second, the letter does not replicate the wording of paragraph 9(7) of Schedule 4.
11. The importance of a certificate such as this from an appellant's point of view has been much pressed by Mr Khubber, not least in the context of someone fleeing from difficulties that might be encountered in Iran. I accept that without cavil. Decisions of the Immigration Appeal Tribunal under the predecessor legislation in the Asylum and Immigration Appeals Act 1993 emphasise that the certificate must comply with the statute strictly. It must specify what it is required to specify. I accept that also, at any rate in general terms. However, Keith J in this case held essentially -- and I refer to paragraphs 15 and 16 of his judgment -- that it was enough for the Secretary of State to refer simply to paragraph 9(6)(c). Anyone reading the certificate with knowledge of the statute would then appreciate that this was a case in which it was being said that the claim was frivolous or vexatious and, the judge added, it was not necessary to distinguish between these two epithets for the certificate to be good.
12. As regards the point under paragraph 9(7), the learned judge said in paragraph 19:

"Nor was there any need for the Secretary of State to explain why in his view paragraph 9(7) did not apply to the claimant's claim. It would have been sufficient for him to state that the claim was one to which paragraph 9(7) did not apply. It is true that the additional words, 'because you have adduced no evidence relating to torture in Iran' did not track the language of paragraph 9(7)."

13. Then a little later in the same paragraph of the judgment:

"But I do not think for one moment that the additional words which the Secretary of State added show that he did not apply his mind to the critical question posed by paragraph 9(7). In my opinion, the additional words were a form of shorthand designed to inform the claimant ... of the topics to which paragraph 9(7) related."

14. I would not accept there is any real argument to be had on Mr Khubber's linguistic points, but it seems to me that the submissions he has made under this first point concerning the language of the decision letter look forward to the second point he makes, which is that paragraph 9(6)(c) -- "frivolous or vexatious" -- applies in truth only to a case where there is no allegation on the face of the claim that Convention issues, either under the Refugee Convention or the Human Rights Convention, arise; and 9(6)(c), he submits, does not apply in a case merely because the Secretary of State or the adjudicator concludes that the claim is without foundation on its merits.
15. It seems to me that the difficulty here is that there is material which may be said to show that the learned adjudicator was upholding the certificate effectively on the basis that the claim was manifestly fraudulent, and that of course would form the basis for a certificate under paragraph 9(6)(b), which I have read. The reason why I say there is such material emerges from paragraph 30 of the special adjudicator's determination, which is, so far as material, in these terms:

"I indicated that I would deal with the certificate issued by the respondent in this case once I had considered the totality of the evidence. For the reasons I have given, it is my finding the appellant has fabricated a claim for asylum. For that reason, and given the respondent's evidence as to why he did not accept her credibility in his reasons for refusal, I accept the respondent was right to certify the appellant's claim as frivolous and vexatious. In my view the appellant has used the argument of her sexual orientation, falsely, in an attempt to be granted political asylum."

16. Mr Khubber reminds me that there is learning at the level of the tribunal to the effect that, once the Secretary of State nails his colours to one of the particular masts that are set out in paragraph 9(6)of Schedule 4 to the Act of 1999, then the certificate is only to be held good if that particular ground or basis is the one that is agreed to in due course by the adjudicator. Here, having regard to the terms of the paragraph I have read, it may be said to appear that what the adjudicator is accepting is that the case was manifestly fraudulent. The argument is not without a measure of technicality, but it is now elementary that an anxious scrutiny has to be applied to these cases. On this basis, which is not entirely within the four corners of the argument as it was formulated by Mr Khubber, I would grant permission.
17. As regards the true scope of paragraph 9(6)(c), I doubt whether Mr Khubber will be able to sustain the argument that it only applies to a case where there is no allegation that Convention issues arise at all. It is noteworthy that, in guidance issued by the Secretary of State, to which Mr Khubber helpfully drew my attention, certain examples are given. I am reading from paragraph 10 of chapter 5, section 2, of the Immigration and Nationality Directorate's policy document:

"Paragraph 9(6)(c) applies to those claims that are considered to be frivolous or vexatious. An example of a frivolous claim would be where the applicant bases a claim on facts that are both different from and wholly incompatible with those cited previously, either in a previous claim or as part of the same claim.

"A vexatious claim can apply to repeat applications."

18. It is not necessary for the purposes of this judgment, by which I do no more than grant permission to appeal, to say more about the precise scope of paragraph 9(6)(c).
19. There is a final point raised by Mr Khubber. It is conveniently encapsulated in his skeleton argument at paragraph 9.5(c) thus:

"The learned judge erred in law here because at the very least the adjudicator had accepted that the claimant would face one month to three years' imprisonment upon return as a failed asylum seeker. On the basis of such a finding it is perverse to consider that a claim for asylum could be regarded as frivolous or vexatious."

20. This point was put to Keith J. He cited the finding of the adjudicator as follows:

"'The claimant will be returning to Iran without a passport and other identification documents. I accept that she will be subject to interrogation on return. However, the penalty which she may face for being in breach of the Iranian exit regulations ranges from one month to three years' imprisonment and/or a fine. There are no grounds for saying that this represents an unduly harsh or disproportionate punishment, and is much the same as the claimant might receive in the United Kingdom for such an offence.'"

21. The learned judge took the view (see paragraph 30) that the reason why the applicant might suffer any such punishment would be that she broke Iran's own immigration rules in order to pursue what was subsequently held to be an unsubstantiated claim for asylum in the United Kingdom. That may very well be so. It seems to me that Mr Khubber is entitled to pray this aspect of the case in aid to support the argument that the adjudicator's agreement with the stated grounds of the certificate -- that is paragraph 9(6)(c) -- is legally fragile.
22. For those reasons I would give permission to appeal.

Permission granted.

23. Submissions from counsel for the applicant asking the Lord Justice to recommend legal aid funding for the appeal.