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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gavira v Secretary Of State For Home Department [2001] EWHC Admin 250 (4th April, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/250.html Cite as: [2001] EWHC Admin 250, [2002] 1 WLR 65, [2002] WLR 65

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GAVIRA v. SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 250 (4th April, 2001)

Case No: CO/2326/2000

Neutral Citation Number: [2001] EWHC Admin 250

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 4^th April 2001

MR JUSTICE STANLEY BURNTON:

1. In these proceedings the Claimant seeks an order to quash the determination of Mr Nigel Mylne QC as Special Adjudicator rejecting her appeal against the Secretary of State's rejection of her claim for asylum and upholding his certification of her claim under paragraph 5(4)(a) of Schedule 2 to the Asylum and Immigration Appeal Act 1993 as amended ("the Act"). I heard argument on the question of certification as a preliminary issue. At the conclusion of the argument on that point I informed the parties of my decision that the Special Adjudicator's decision to uphold the certification of the claim was vitiated by legal error. Counsel agreed that in consequence of my decision on this issue I should make an order quashing the determination of the Special Adjudicator and remitting the appeal for hearing before a different Special Adjudicator, and I did so. Because my decision turned on a basic question as to the interpretation and effect of the provisions of the Act concerning certification on which there appears to be no direct authority, I informed the parties that I should give the reasons for my decision in writing, and I now do so.

2. The Claimant is of Columbian nationality. She arrived in the UK on 4 February 1995. She sought entry as a student but was refused and granted temporary admission. She absconded, but submitted her claim for asylum on 24 March 1995. She claims to be associated with the Hurtado family in Colombia. According to an expert report of Dr Jenny Pearce, of the Department of Peace Studies at the University of Bradford, the Hurtado family belongs to the Liberal Party in Colombia; and there is a feud between the Hurtado family and the Correas family, who belong to the Conservative Party and have traditionally held a great deal of influence in the local police force. The feud has continued for over 30 years and has led to the deaths of many members of both families. The report refers to "the determination of the (Correas) to wipe out the Hurtados".

3. The Claimant claims that in February 1992 she was approached by a member of the Hurtados family and asked to look after her daughter; she, the Claimant, agreed to do so; she witnessed the murder of a member of the Hurtado family; she was threatened and raped by men one of whom she had seen during the murder; and that subsequently she received threatening telephone calls and written threats, which led her to leave Colombia. Her claim for asylum was supported by the expert report of Dr Pearce referred to above, which also stated that the Claimant's "decision to shelter the 15-year old daughter of one of (the Hurtado family) was an act of clear association with that family". The Claimant's case was that the Correas family and the police would attribute to her the political opinions of the Hurtado family.

4. The Secretary of State rejected the Claimant's claim for asylum on the ground that it was not credible: i.e., he did not believe her, and she therefore had not established a well-founded fear of persecution. In addition, he certified her claim under paragraph 5(4)(a) of Schedule 2 to the Act, stating in the terms of that paragraph that "your claim does not show a fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion"; and that paragraph 5(5) did not apply because the evidence she had adduced did not establish a reasonable likelihood that she had been tortured in Columbia.

5. The Special Adjudicator rejected the Claimant's appeal. He too found her story to be incredible. With regard to the certification of her claim, his determination stated:

In view of my firm belief that the has not been truthful with the authorities in this country, and my firm view that she has not brought herself within Article 1 of the 1951 Geneva Convention, I do not think it necessary if I examine in detail Ms Harrison's submission that the appellant brings herself within "a particular social group" because of her close association with the Hurtado family. In this connection I have been referred to the House of Lords case of Shahana Islam, but, if called upon to decide the point, I do not accept that, on the facts of this case she has brought herself within this category. Equally I reject the submission that the appellant can bring herself within the Geneva Convention on the basis of "imputed political opinion". She has made it abundantly clear throughout that she has no political affiliations, and she has no interest in politics whatsoever.

6. Miss Harrison submitted:

(i) That the reason given by the Special Adjudicator for rejecting her claim based on imputed political opinion was that she had no personal political opinion. That demonstrates a misunderstanding of the concept of imputed political opinion, which is a political opinion which may not be held by the persecutee but which is attributed to him or her by his or her persecutors. In effect, the Special Adjudicator rejected the principle that an imputed political opinion falls within the Geneva Convention.

(ii) A well-founded fear of persecution by the authorities of a country by reason of an imputed political opinion falls within the Geneva Convention: see the judgment of Buxton LJ in Danian v Secretary of State for the Home Department [1999] INLR 533 at 557H.

(iii) Certification under paragraph 5(4)(a) of Schedule 2 to the Act depends only on the content of the claim put forward by an asylum seeker, i.e., on the content of his or her assertions, and not on whether the claim is factually well founded.

(iv) The claim in the present case did show, in this sense, a fear of persecution on political grounds.

(v) The Special Adjudicator failed to distinguish between the question whether the claim before him showed a fear of persecution on Convention grounds and the question whether that claim was factually well-founded. He should have asked himself the first question; however, his determination shows that he asked the second.

7. Mr Qureshi, for the Secretary of State, did not dispute Miss Harrison's submissions (i) and (ii), and did not feel able to dispute that the Claimant had asserted that she had a fear of persecution on grounds of either imputed political opinion. He did however dispute submission (iii), and therefore submissions (iv) and (v). He submitted that the Secretary of State is entitled to certify a claim to asylum under paragraph 5(4)(a) of Schedule 2 to the Act if the Secretary of State is satisfied that although the asylum seeker asserts that he has a fear of persecution on Convention grounds, that assertion is as a matter of fact unfounded and false. He accepted that if that submission was incorrect, the decision of the Special Adjudicator upholding the Secretary of State's certification of the claim could not be upheld.

8. Certification has an important impact on a claim to asylum. Under the Asylum Appeals (Procedure) Rules 1996, the time for appealing against a rejection by the Secretary of State of a claim for asylum is 7 days unless the claim is certified and the other conditions in Rule 5(2) are satisfied, in which case it is only 2 days. (This, and the other time limits to which I refer, may be extended in appropriate cases, but the difference in time limits is nonetheless important.) Whereas under Rule 9 a Special Adjudicator is required to decide other appeals within 42 days of receiving the documents, in the case of a certified claim that period is only 10 days. Rule 11 imposes on a Special Adjudicator who upholds the certification of a claim different time limits with regard to the announcement of his decision and the provision of written notice of his determination as opposed to a non-certified claim or a certification which the Special Adjudicator does not uphold. Most importantly, if upheld by the Special Adjudicator, certification deprives an asylum seeker of an appeal from the Special Adjudicator to the Immigration Appeal Tribunal.

9. Subparagraphs (1) to (7) of Paragraph 5 of Schedule 2 to the 1993 Act are as follows:

Special appeal procedures for claims without foundation

5--(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which -

(a) sub-paragraph (2), (3) or (4) below applies; and

(b) sub-paragraph (5) below does not apply.

(2) ....

(3) ...

(4) This sub-paragraph applies to a claim 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) 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;

(c) it is made at any time after the appellant -

(i) has been refused leave to enter 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 by virtue of section 3(5) of that Act, or

(iv) has been notified of his liability to removal under paragraph 9 of Schedule 2 to that Act;

(d) it is manifestly fraudulent, or any of the evidence adduced in its support of manifestly false; or

(e) it is frivolous or vexatious.

(5) This sub-paragraph applies to a claim of the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.

10. In my judgment, the question whether a claim shows a fear of persecution, for the purposes of paragraph 5(4)(a), depends solely on the content of the claim. A claim which asserts that the asylum seeker has a fear of persecution based on facts which, if true, would involve Convention grounds is a claim which "shows a fear of persecution" on such grounds. Different words would have been used if the test were whether the asylum seeker has a factually well-founded fear of persecution on Convention grounds. Paragraph 5(4)(a) is concerned with what a claim shows, not with the evidence to support the claim.

11. This interpretation is supported by the wording of paragraph 5(4)(b). It is impossible to see how a claim can show a fear of persecution, in the sense of being factually well-founded, and yet be manifestly unfounded. Furthermore, if paragraph 5(4)(a) involves examination of the truth of the claim for asylum, it is difficult to see why sub-paragraphs (d) and (e) were necessary.

12. On this basis, the object of certification under paragraph 5(4)(a) of Schedule 2 to the Act is to exclude from the normal procedure cases where, on the asylum seeker's own story, he has no claim to asylum under the Convention.

13. This interpretation of Paragraph 5(4)(a) is supported by the consideration that if it included claims for asylum which are not supported by the evidence, such as claims rejected on grounds of credibility, all or virtually all claims of asylum seekers who have not been tortured could be certified. What is plainly intended to be the exception would be the rule. The scope of the right of appeal to the Immigration Appeal Tribunal would be drastically reduced. I should come to this conclusion only if the statutory words compelled it. They do not: they lead me to the contrary conclusion, and to a result far more likely to have been intended by Parliament. The heading to paragraph 5, "Special appeal procedures for claims without foundation", is consistent with this.

14. Miss Harrison sought support for her submissions from the decision of the Immigration Appeal Tribunal in Secretary of State for the Home Department v Salah Ziar [1997] Imm AR 456, in which the Tribunal said, at page 472:

As a general principle it seems to us that an adjudicator should consider at the earliest possible moment in any case whether or not the certificate has been established. To adopt a general practice of waiting until the end of the case before stating whether or not the certificate is agreed may well defeat the spirit not only of the asylum process but of the procedure itself. Accelerated procedure is intended to apply to claims which are certified. If, as we think, the certification may well affect the preparation of the appellant's case and the hearing before the adjudicator, to wait until the end to the proceedings and then to find either that the appeal was not properly or should not have been certified may be to defeat the dichotomy between the two categories of case. In other words, the purpose of categorisation dictates that the initial decision-taker consider it only after the substantive issue but an adjudicator at the earliest possible moment in the appeal. That conclusion is underlined by the difference in the burden and standard of proof in establishing the positive triggering of paragraph 5 (i.e. the matters set out in 5(2)(3) and (4)).

15. Similarly, the Tribunal stated at page 470:

We have held that the provisions of paragraph 5(1) of schedule 2 are mandatory and that if the certification process does not comply with it there can be no amendment on appeal to achieve compliance. It follows that although there may be common issues the process is distinct from the substantive claim. So whether the claim is within paragraph 5 at all (i.e. is properly certified) clearly should be considered as a preliminary issue. As to this we therefore agree with the adjudicator's approach.

16. The separate consideration of certification by adjudicators referred to in these passages indicates that it may depend on matters other than the evidence relating to the substantive claim.

17. On the other hand, the Tribunal stated, at page 470-71:

Mr Graham and Miss Winterbourne [counsel for the parties] took us through the motley collection of grounds for certifying a claim which now make up paragraph 5 of schedule 2 of the 1993 Act. Both started from the common ground that there were some matters which were necessarily interlinked with the substantive claim. However Miss Winterbourne drew the conclusion that in most matters there could be a separation and Mr Graham drew the conclusion the in very few, if any, could that separation be sensibly adopted. In our view the argument simply demonstrated that the question of sensible separation varies according to the ground on which the Secretary of State relies for certifying the claim.

The sub-paragraph in regard to separation of the issues which would be easier are those of 5(2) (the designated list), 5(3) (the failure to produce a passport or production of an invalid passport), 5(4)(c) (the relation of the making of the claim to refusal of leave, deportation decisions or orders or notification of removal of an illegal entrant). It will be difficult to separate the issues in relation to 5(4)(a) (no Convention reason), 5(4)(b) (manifestly unfounded fear or a fear which no longer subsists), 5(4)(d) manifestly fraudulent claim or manifestly false evidence) and 5(4)(e), frivolous or vexatious claim."

18. If, in the course of a generally helpful and impressive decision, in that passage the Tribunal implied that certification of a claim under paragraph 5(4)(a) depends on the evidence supporting that claim, I have respectfully to say that they were wrong.

19. Miss Harrison's also sought support from the fact that whereas the burden of proof of an asylum seeker's claim generally is on the asylum seeker, the burden of proof in relation to certification is on the Secretary of State: see the Salah Ziar at page 469-470. However, in the case of paragraph 5(4)(a), in my judgment certification does not depend on an assessment of evidence, but on the content of the claim. In this respect paragraph 5(4)(a) differs from, for example, paragraph 5(4)(d).

20. The Special Adjudicator's decision to uphold the Secretary of State's certification of the claim under paragraph 5(4)(a) of Schedule 2 to the Act was vitiated by his errors of law in applying the test laid down by that paragraph and in excluding the concept of imputed political opinion from the scope of the Convention. It was therefore quashed.