Mustafarj v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 10 September 1993 |
| Citation / Document Symbol | [1994] Imm AR 78 |
| Cite as | Mustafarj v. Secretary of State for the Home Department, [1994] Imm AR 78, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 10 September 1993, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6a31c.html [accessed 2 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
MUSTAFARAJ v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1994] Imm AR 78
Hearing Date: 10 September 1993
10 September 1993
Index Terms:
Political asylum -- refusal of application -- refusal of leave to enter -- application for asylum in opinion of Secretary of State without foundation -- no contemporary certificate to that effect -- whether decision by Secretary of State in consequence defective whether adjudicator correct to refer application to Secretary of State for reconsideration -- whether an appeal to the Tribunal lay from that decision by the adjudicator -- whether in so referring such a case to the Secretary of State an adjudicator was obliged to direct that the application be substantially considered. Immigration Act 1971 ss 13(1), 19, 20: Asylum & Immigration Appeals Act 1993 ss 8(1), 8(6), 10, 11, sch 2 paras 5(1), 5(5), 5(6): HC 251 180K.
Held:
The appellant was a citizen of Albania whose application for political asylum had been refused by the Secretary of State. The Secretary of State had concluded that the application was without foundation: the applicant's appeal to a special adjudicator was accordingly one that followed the "fast track" procedure introduced for appeals certified as being without foundation, by the 1993 Act. When the appeal went before the Chief Adjudicator he noted that there was no pre-hearing certificate from the Secretary of State certifying that the application was, in his opinion, without foundation. The Chief Adjudicator accordingly allowed the appeal to the extent of referring it back to the Secretary of State for reconsideration. The appellant appealed to the Tribunal, before which a number of issues were raised. The jurisdiction of the Tribunal to entertain the appeal was challenged: it was questioned whether there had to be a certificate of the nature that the Chief Adjudicator had held to be necessary. The Tribunal considered whether the Chief Adjudicator was correct in law in any event to refer the application back to the Secretary of State: for the appellant, it was argued that where a "without foundation" appeal was referred back to the Secretary of State, he should be directed to consider the application on the merits. Held 1. The Tribunal had jurisdiction to entertain an appeal against a special adjudicator's decision to refer back to the Secretary of State a case arising under paragraph 5(6) of the second schedule to the 1993 Act. 2. The requirement under schedule 2 paragraph 5(6) of the 1993 Act that the Secretary of State "has certified" that a claim for asylum is without foundation, could be satisfied by a statement other than in a certificate by an authorised officer and that statement could be contained in a letter of decision. 3. Where a special adjudicator concluded, contrary to the view of the Secretary of State, that an appeal was not "without foundation", he was not obliged to refer it back to the Secretary of State either under the provisions of the 1993 Act or those of the 1971 Act. The appeal remained for the special adjudicator to determine, albeit it fell outside the ambit of paragraph 5 of the second schedule. 4. Where a special adjudicator, pursuant to paragraph 5(6) of the second schedule, did refer a case back to the Secreary of State, he did not have to direct that it be considered on the merits, but should specify what matters should be reconsidered by the Secretary of State.Cases referred to in the Judgment:
Aloloum (unreported) (9334). Ali (unreported) (HX/70003/93).Counsel:
P Jorro of the Refugee Legal Centre for the appellant; D Wilmott for the respondent PANEL: Professor DC Jackson (Vice-President), DM Froome Esq, A Smith EsqJudgment One:
THE TRIBUNAL: The appellant, a citizen of Albania, appeals to the Tribunal against a decision of the Chief Adjudicator (Mr M Patey MBE) referring his case to the Secretary of State for reconsideration. By a decision of 27 July 1993 the appellant was refused leave to enter the United Kingdom, the notice of refusal reading: "A. You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice. B. You have presented a Greek passport in the name of Nestor Manolis but I have reason to believe that this document is forged. In the light of this I consider that your exclusion from the United Kingdom is conducive to the public good. You have subsequently produced an Albanian passport in the name of Shamet Mustafaraj Gogo which you have admitted is your true identity. However under the Immigration Rules you are required to have a visa to enter the United Kingdom and you have no visa. I therefore refuse you leave to enter the United Kingdom." The attached notice referred to in paragraph A reads: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Albania for reasons of race, religion, nationality, membership of a particular social group or political opinion. However, Albania is not the only country to which you can be removed. You arrived from France where you spent at least two hours. Moreover, the Secretary of State is satisfied that, from the documentary evidence available, you had the opportunity to bring yourself to the attention of the French immigration authorities. You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to France and the Secretary of State is satisfied on the information available that you will be re-admitted there. Moreover, France is a signatory to the 1951 Convention relating to the Status of Refugees, and, on the basis of the information available to him about the policies and practices of France the Secretary of State is satisfied that the authorities of France would not further remove you to Albania without first considering, in accordance with its obligations under the 1951 UN Convention, any application you make for asylum in that country. Furthermore, the Secretary of State has certified that, in his opinion, your claim that your removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention is without foundation as it does not raise any issue as to the United Kingdom's obligations under the Convention." In the refusal notice it is stated that the immigration officer signing the notice proposes to give directions for the removal of the appellant and that the appellant has the right to appeal against the decision to refuse leave to enter on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the 1951 United Nations Convention relating to the status of refugees. It is also said that the appellant has no right of appeal against the decision to refuse leave to enter for the reasons stated in part B of the notice. It is the appeal against leave to enter following the decision to refuse asylum that is before us. However, we note in passing that contrary to the notice there would appear to be a right of appeal against the refusal of leave to enter on the ground that the appellant's exclusion from the United Kingdom is conducive to the public good -- albeit that this appeal may be exercised only from abroad. Notice of appeal was lodged on 28 July 1993 and the documents relevant to the appeal were received by the appellate authority from the Home Office on 2 August 1993. The covering letter reads: "I enclose the Home Office reasons for refusal letter and related documents in respect of the appeal of the above named. I would like to draw your attention to the fact that: 1. This appeal is made under section 8(1) of the 1993 Act. 2. There has been personal service on the appellant of the notice of the decision against which he is appealing. 3. The Secretary of State has certified that this case is without foundation within the provisions of Paragraph 4 of Schedule 2 of the 1993 Act. It therefore appears that the appeal falls to be dealt with under the special accelerated appeal procedures outlined in paragraph 4 of Schedule 2 to the Asylum and Immigration Appeal Act 1993. Copies of the appropriate documents have been sent to the office of the United Nations High Commissioner for Refugees, with a request that they contact you should they wish to be a party to the appeal. I should be grateful if you would notify them direct of the arrangements if appropriate." The case was listed for hearing before an adjudicator on 5 August, adjourned because of legal issues and eventually considered by the Chief Adjudicator on 18 August. On the later occasion there appears to have been a "Certificate" relating to the appellant's claim dated 11 August 1993 and signed by an officer of the Home Office Asylum Division. This certificate recorded: "The Secretary of State hereby certifies that in his opinion, the claim of the person named below that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention for him/her to be removed from the United Kingdom is without foundation." The record of proceedings is brief and shows that on a concession by the presenting officer no pre-decision certificate of the type now adduced existed. The Chief Adjudicator declared that he would direct that the case be referred to the Secretary of State for reconsideration in accordance with paragraph 5(6) of schedule 2 to the Asylum and Immigration Appeals Act 1993 ("the 1993 Act"). In his determination (the document recording which is promulgated on 18 August 1993) the Chief Adjudicator set out the reason for refusal letter which we in turn have set out and recorded the inability of the presenting officer to provide the "without foundation" certificate to which we referred pre-dating the decision. In these circumstances, said the Chief Adjudicator, "Taking into account that the provisions set out in paragraph 5(1) of the second schedule to the Act require such certification, I find that the respondent's decision is flawed in law and must fail." In support of this view the Chief Adjudicator distinguished a requirement that "the Secretary of State is satisfied" from that that the Secretary of State has "certified", the latter requiring, in the Chief Adjudicator's view, a "positive act". The Chief Adjudicator referred to a similar finding by the Deputy Chief Adjudicator in another case (Ali HX/70003/93) with which he "fully concurred". The Chief Adjudicator concluded his determination: "I therefore direct that this appeal be referred to the Secretary of State for reconsideration under the provisions contained in paragraph 5(6) of the second schedule to the Act thereby disposing of this appeal". Leave was granted on the ground that the Chief Adjudicator having not agreed that the claim was without foundation and the respondent's decision flawed in law, had erred in failing to direct the Secretary of State to consider the case substantively. As the Chief Adjudicator concurred in the earlier decision of Ali and as the decision in that case was supported by Mr Jorro in this case it is as well to summarise that decision at this stage. That decision (by the Deputy Chief Adjudicator) was recorded in a document sent to the parties on 6 August 1993. In that case, as in the case before us, the applicant had applied for asylum on entry. However, unlike the present case, it appears that there was no evidence of refusal of leave to enter and that the sole "refusal" document before the Deputy Chief Adjudicator was the refusal of the asylum application. As in this case the refusal was based on the existence of a country to which the appellant could be removed and a conclusion that removal would not be contrary to the United Kingdom's obligations under the Refugee Convention. The final paragraph of the refusal letter is in substance identical with the letter in this case and cited above. In particular it contained the statement that "the Secretary of State has certified that in his opinion" the claim is "without foundation". In his determination the Deputy Chief Adjudicator categorised the right of appeal of the appellant under the 1993 Act as a right of appeal against the refusal of asylum. The Deputy Chief Adjudicator allowed the appeal stating that no certificate that in the opinion of the Secretary of State the claim is without foundation had been produced to him. As to the need for such a certificate, the adjudicator referred to a number of authorities on the authority to take deportation decisions under the Immigration Acts 1971 and 1988. The Deputy Chief Adjudicator noted that these authorities established the principle that the Secretary of State was entitled to delegate responsibility to responsible officers within his department to exercise statutory powers on his behalf. The Deputy Chief Adjudicator was, however, of the view that a distinction was to be drawn between the case before him and the exercise of powers where no certifying of that exercise was required by the legislation. A requirement to certify was "a requirement of a positive act". There was no ground for inferring, thought the Deputy Chief Adjudicator, that the Secretary of State had delegated to someone unknown but of a sufficient rank to act on his behalf "a power to give the certificate". The Deputy Chief Adjudicator concluded his determination: "This appeal is therefore allowed. I have decided that, rather than use the power under paragraph 5(6) of Schedule 2 to the 1993 Act, to refer the case to the Secretary of State for reconsideration, I should make such a direction under my powers in that behalf under section 19(3) of the 1971 Act. It may be that it comes to the same thing but until I have had the matter more adequately canvassed before me, I prefer to rely upon the provision I have stated." The relevant legal structure The Immigration Acts 1971 and 1993 The appeal is brought under section 8(1) of the 1993 Act. This reads: "A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention." Section 8(6) provides that section 8(1) (and other provisions of section 8) have effect subject to schedule 2 of the Act. Schedule 2 provides inter alia that no appeal which may be brought on any of the grounds mentioned in section 8(1)-(4) may be brought under the 1971 Act. But subject to certain specified exceptions the provisions of Part II of the 1971 Act should have effect as if section 8 of the 1993 Act were contained in that part. The 1971 Act Part II of the 1971 Act establishes the appellate structure and included in that structure are sections 19 and 20 providing for the jurisdiction of the adjudicators and the Tribunal. Relevant to this appeal are sections 19(1)(3) and 20(1). So far as relevant these read: "19. (1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal.. . .
(3) Where an appeal is allowed, the adjudicator shall give such directions for giving effect to the determination as the adjudicator thinks requisite . . . 20. (1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator." Section 20(2) confers power on the Tribunal to replace the directions if the determination is affirmed. The 1993 Act The qualifications specified in the 1993 Act of Part II of the 1971 Act (and in particular sections 19 and 20) relevant in this case are those set out in schedule 2 paragraph 5 of the 1993 Act. At issue are paragraphs 5(1), (5) and (6). These read: "5(1) Subject to sub-paragraph (2) below, this paragraph applies to an appeal by a person under subsection (1)(3)(b) or (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 the United Kingdom is without foundation.. . .
(5) If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is without foundation, section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal. (6) If the special adjudicator does not agree that the claim is without foundation, he may (as an alternative to allowing or dismissing the appeal) refer the case to the Secretary of State for reconsideration; and the making of such a reference shall, accordingly, be regarded as disposing of the appeal." The Immigration Rules Removal of an asylum applicant to a "safe third country" (as is proposed in this case and was proposed in Ali) is provided for in paragraph 180K of the immigration rules (HC 251). The policy of the Secretary of State is set out in the first sentence -- "If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status." The rule also sets out criteria and prerequisites for removal on the ground that there is a safe third country. Although it is not apparent from the letter of decision in the case before us it is implied from the grounds of appeal that there has been no substantive consideration of the claim. The Issues The questions for the Tribunal are: 1. May an appeal be brought to the Tribunal from the decision of the Chief Adjudicator? 2. The applicability and effect of the "without foundation" provisions of schedule 2 paragraph 5 of the 1993 Act, and in particular if an appeal may be brought from the decision of the Chief Adjudicator -- (a) did the Chief Adjudicator err in law in finding that the Secretary of State had not certified that the claim was without foundation. (b) whether or not the Chief Adjudicator erred in law in the finding referred to in (a), did he err in law in referring the case to the Secretary of State for reconsideration. (c) should the Chief Adjudicator in referring the case for reconsideration have specified the issues to be reconsidered and in particular that there should be substantive consideration of the claim. Is There An Appeal Before The Tribunal? The appeal to the special adjudicator The appeal to the adjudicator was under section 8(1) of the 1993 Act. The effect of that provision is to bring within the 1993 Act an appeal against refusal of leave to enter on the ground that removal would be contrary to the Refugee Convention 1951. In so doing the 1993 Act did not create any new category of appeal against refusal of asylum or refugee status. The appeal remains, as Mr Jorro argued, an appeal against refusal of leave to enter and contrary to Mr Wilmott's arguments, the 1993 Act does not purport to nor does it create any category of appeal against the refusal of asylum or against removal. The power and duty of a special adjudicator under the 1993 Act is as they are under the 1971 Act except as qualified by the later Act. Those qualifications are contained first, in removal of rights of appeal (see sections 10, 11 of the 1993 Act) and, secondly, relevant to this appeal, the introduction of the concept by schedule 2 paragraph 5 of claims certified by the Secreary of State as "without foundation". It will be seen from the provisions we have set out that in respect of these claims an adjudicator (i) may in addition to allowing or dismissing the appeal refer the matter to the Secretary of State for reconsideration and (ii) is under a duty to declare whether the claim was correctly certified as "without foundation". The appeal to the Tribunal from the special adjudicator Subject to any requirement of leave and statutory exclusion an appeal may be brought to the Tribunal under the 1971 Act by "any party to an appeal before an adjudicator . . . dissatisfied by the determination thereon" (section 20). Save by the express provisions of the 1993 Act this will apply unless qualified by that Act. In respect of the present case, as with the adjudicator, the relevant qualifications are to be found in schedule 2 paragraph 5. There is the express provision that agreement of an adjudicator with the certification of an appeal by the Secretary of State as without foundation "shall not confer on the appellant any right for appeal" to the Tribunal. Mr Wilmott sought to argue that in addition to this exclusion no further appeal would lie from any reference by an adjudicator to the Secretary of State for reconsideration under paragraph 5(6). Mr Wilmott pointed to the phrase that such reconsideration "shall . . . be regarded as disposing of the appeal", and sought to distinguish the reconsideration from a "determination" within section 20 of the 1971 Act. The reconsideration did not, argued Mr Wilmott, have the necessary element of finality -- it did not "shut the door" on the applicant. We agree with Mr Jorro that it would be strange if a provision of a statute primarily concerned in creating, qualifying, and abolishing rights of appeal, should in this instance use such oblique language if abolition were intended -- an argument strongly supported by the express abolition of the Tribunal appeal in paragraph 5(5). Secondly, Mr Wilmott's argument in respect of finality cannot stand in our view with the provision that the reference "disposes of the appeal". So in relation to that appeal the door is shut on both the applicant and the Secretary of State. After reconsideration there must be a fresh decision founding, if necessary, a fresh right of appeal. We add only that the provision of an appeal against a reference is sensible. Either party may wish to challenge the decision that the matter should be reconsidered on the ground that the appeal should have been allowed or dismissed when before the adjudicator. It follows that there is an appeal before us. The applicability and effect of the "without foundation" provisions Before considering the particular issues that we have set out under this heading there is a need to consider the general effect on the certifying by the Secretary of State of a claim "without foundation". Such a certifying will not only confer on the adjudicator the powers and duties under schedule 2 paragraph 5 of the 1993 Act but impose the time limits and other procedural obligations specified in the Asylum Appeals (Procedure) Rules 1993. It does not, however, as such have any effect on the hearing of the appeal nor on the duty (set out in section 19 of the 1971 Act) to consider whether the refusal was in accordance with the law, or any applicable immigration rule or to review any appealable discretion. While therefore Mr Jorro is right in arguing that an adjudicator may review the "opinion" of the Secretary of State that the claim is without foundation, the consequences of disagreement with that opinion have nothing to do with the consideration of the issue on the appeal. Indeed the conclusion that the claim is or is not without foundation can only be reached after such consideration and the consequences go not to the justification of the ground of refusal but solely to the appeal process. The safe third country cases and claims "without foundation" The issue raised on appeal may itself pose a question for an adjudicator as to whether the appeal may be allowed or dismissed in toto or, having made a decision on one issue, the merits remain outstanding before the Secretary of State. Under the 1993 Act the matter will arise necessarily where the Secretary of State has acted under paragraph 180K of the immigration rules and has refused to consider an asylum application because, he asserts, there is a safe third country. There is jurisdiction in the appellate authority not only to review the question as to whether a third country is safe as asserted, but also to review the discretion provided for in paragraph 180K to consider the claim even if there is a safe third country. Whether the latter can arise in an appeal under section 8(1) of the 1993 Act depends on whether it falls within the ground of challenge under that Act (ie removal contrary to the Refugee Convention). If the question fails outside that provision the matter must remain under the 1971 Act and the availability of the appeal subject to the limitation of section 13(3) of that Act, (see eg Aloloum (R 9334)). The question of the appropriate statutory base must remain for future consideration -- but if it is under the 1993 Act the distinction between a safe third country issue and the without foundation procedure will apply as it does to the question of whether a third safe country exists. While as in the case before us a refusal to consider because of a safe third country may be certified as a claim without foundation for that very reason, the two aspects must be carefully distinguished. A decision that the claim is not without foundation simply means that a different appeal procedure applies -- but the appeal remains for disposal. Whether that disposal is of the merits or simply that the claim should be substantively considered depends on the circumstances of the case. An appeal from a refusal to consider because of a safe third country may be referred back or remitted for substantive consideration -- but only after dealing with the issue of the safe third country. Whether or not the claim is certified as "without foundation" is irrelevant to the duty to dispose of the appeal. Is a certificate of "without foundation" required by law We agree with Mr Wilmott that if a certificate had been required this would have been provided for by statute. If a statute requires that a person "has certified" and a document states that that person "has certified" it is difficult to see why the requirement is not met in the absence of any successful attack on the document as reflecting that which has occurred. It is common ground that the requirement that "the Secretary of State has certified" would be met by certification by an authorised officer of sufficient rank so as to act on behalf of the Secretary of State. If, as was arguably the case in respect of the letter of decision in this case, the rank of the officer signing the refusal letter is not clear on the face of the letter that in our view was capable of clarification through an adjournment. Provided the statement that the Secretary of State "has certified" in the letter is capable of meeting the statutory requirement we see no reason whatsoever for taking the drastic step of disposing of the appeal when the rank of the officer may be ascertained through speedy enquiry. As to the act of certifying, Mr Jorro contended strongly that the statute required that the Secretary of State "has certified" and drew a parallel with section 14 of the 1971 Act and the requirement that the appellant "has limited leave" for the lodging of an appeal. We agree that, just as section 14, the matter must have been certified by the time material to the provision. We also agree with the Chief Adjudicator and Deputy Chief Adjudicator that implies the need for a positive act -- but in our view only in the sense of a declaration. In respect of an appeal under section 8(1) under the 1993 Act the material time, agreeing with Mr Jorro's own argument is the receipt of a notice of refusal of leave to enter. It is from that moment that the appeal process takes on a different role and that an obligation is imposed upon the appellant to comply with the special requirements. We respectfully disagree with the Chief Adjudicator and the Deputy Chief Adjudicator that the requirement of a positive act can be met only by "a certificate". Given no issue of the authority of a decision maker acting for the Secretary of State it would seem to us to suffice that in the letter of decision the officer "certifies" that in the opinion of the Secretary of State the claim is without foundation. We disagree with the Chief Adjudicator that the certification must pre-date the decision for the categorisation of the claim as without foundation can only be as a result of weighing all relevant factors going to the claim. In substance it would make sense for the decision taker to be the certifier -- giving notice that the lack of quality of the claim brings the special appeal procedure into operation. If the procedure adopted by the Home Office is that the certification is in fact an act of an officer other than the decision taker then we would agree that evidence should be provided as to that certification. In considering the course which should have been adopted in the face of a letter of decision stating that the Secretary of State "has certified" as the Act requires the consequence of a finding of non-compliance has to be borne in mind. The Chief Adjudicator in this case agreed with the approach of the Deputy Chief Adjudicator in Ali. In that case the Deputy Chief Adjudicator refused to draw inferences "given the gravity of the results of an adverse decision". However, the sole consequence of the Deputy Chief Adjudicator's view would be that the "without foundation" appeal procedures would not apply. As we have said, whether these procedures apply or not has no relevance to the duty of the adjudicator to consider the issue before him. It has relevance only to factors going to consequences of the determination of the appeal and the period within which it had to be determined. In these circumstances, therefore, it seems to us that if there were evidence before the adjudicator of compliance with the statutory requirement but that evidence was not sufficiently certain without one further element to establish compliance the matter should have been adjourned and, if necessary, the time limit for determining the appeal extended in order for the matter to be clarified. We conclude therefore that, first, that there is no requirement of a "certificate" that the claim is without foundation, secondly, that the statutory requirement may be met by a statement in the decision letter by the officer taking that decision and, thirdly, that the statement in the decision letter before us did not justify a disposal of the appeal without an opportunity being given for clarification. The reference for reconsideration Whether or not the letter of decision was sufficient compliance with the requirement that the Secretary of State certified that the claim was without foundation Mr Jorro and Mr Wilmott argued that the Chief Adjudicator erred in law in referring the case for reconsideration. We also agree. If the letter of decision did comply with the statutory requirement If the decision letter did comply with the statutory requirement of certification paragraph 5 applies, but there was and is no ground for any reference prior to the consideration of the matter on appeal. As we have said, the adjudicator was under a duty to consider the appeal and reach a decision as to whether the refusal of the application was justified. In this case the adjudicator had first to consider whether the refusal to consider was justified under the Act and rules and following a decision on that issue further to consider how then to proceed. If the decision letter did not comply with the statutory requirement If the decision letter did not satisfy the statutory requirement the Chief Adjudicator erred in purporting to exercise a power under the very paragraph he had held not to be applicable. In Ali the Deputy Chief Adjudicator had in such circumstances acted not under the 1993 Act but under his power to make directions in accordance with section 19(3) of the 1971 Act. We do not dissent from the view that section 19(3) provided the power to make directions to the Secretary of State in the circumstances of this case. We do, however, think it unnecessary as the same result can be achieved under the 1971 Act by allowing an appeal and declaring the matter outstanding before the Secretary of State. Mr Jorro sought to persuade us that the Deputy Chief Adjudicator's approach was correct both as to the source of the power to remit and its exercise. However, with respect, we see even less reason for the exercise of the power by the Deputy Chief Adjudicator than the reference by the Chief Adjudicator in that the Deputy Chief Adjudicator directed substantive consideration of the case. Both the Deputy Chief Adjudicator's direction and the Chief Adjudicator's reference seem to us, with respect, to be rooted in the confusion to which we have referred -- between without foundation appeal procedure and the central issue of the appeal against the refusal of leave. The sole consequence in law of holding that a certificate was required was to take the appeal out of schedule 2 paragraph 5 and to apply the general appeal procedure under the 1993 Act. A direction to consider the matter substantively (ie allowing the appeal against the refusal to consider) could only be given in law once the refusal to do so had been found to be incorrect. Any finding that the without foundation procedure does not apply has no relevance to that issue. Assuming that, despite the Chief Adjudicator's holding that there had been no compliance with the statutory requirement of certification, there nevertheless remained power to refer under paragraph 5(6) of schedule 2, our comments made as to the directions made by the Deputy Chief Adjudicator under section 19(3) of the 1971 Act apply. Whether or not paragraph 5 applied, therefore the Chief Adjudicator remained seized of the appeal and the duty to consider it. The scope of directions on reference for reconsideration Mr Jorro argued that the Chief Adjudicator's reference was defective in that it was too vague and more particularly it should have directed substantive consideration of the claim. The power to refer under the 1993 Act or make directions to give effect to a determination under the 1971 Act is unrestricted, but unless there is some indication of that which is referred we agree with Mr Jorro that the Secretary of State will be uncertain as to that which has been remitted or referred. It may be that as with directions, so with the reference, an adjudicator has the power subsequently to clarify. We have no doubt that as a matter of good practice an adjudicator or the Tribunal should clearly indicate the ambit of any decision on the appeal and that which is for reconsideration by the Secretary of State. For the reasons we have set out we do not however agree that the reference for reconsideration or remittal where the application has not been considered must necessarily be that it be substantively considered. The matters for reconsideration depend on that which is decided on appeal and do not follow simply from any disagreement with the Secretary of State's opinion that a claim is without foundation. Summary We hold therefore as follows: 1. Subject to leave, an appeal may be brought to the Tribunal from a reference of a case for reconsideration under schedule 5 paragraph 5(6) of the 1993 Act. 2. The requirement under schedule 2 paragraph 5(1) of the 1993 Act that the Secretary of State "has certified" a claim is without foundation may be satisfied by a statement (other than a certificate) by an authorised officer, and such statement may be contained in a letter of decision. 3. The result of a case in which a claim is certified by the Secretary of State to be without foundation but held by a special adjudicator on appeal not to be without foundation, is simply that the procedures of schedule 2 paragraph 5 do not apply. Subject to any procedural consequence, the appeal remains for consideration before the adjudicator. It follows that it is an error of law -- (a) for a special adjudicator to refer a case for reconsideration under paragraph 5(6) simply because the case is held to be not within paragraph 5. (b) for an adjudicator in accordance with powers under the 1971 Act to remit a case to the Secretary of State simply because a claim which the Secretary of State asserts is within paragraph 5 is in law not within that paragraph. 4. Where the Secretary of State has refused an asylum application without substantive consideration, it is an error in law for the case to be referred or remitted to the Secretary of State for substantive consideration simply because, for whatever reason, it does not fall within paragraph 5. 5. In referring a case for consideration under paragraph 5(6) a special adjudicator is not restricted in the power to direct which matters are to be considered and in particular is not bound to direct that a case not hitherto substantively considered be so considered. 6. In referring a case for reconsideration under paragraph 5(6) a special adjudicator should indicate the matters which should be taken into account on the reconsideration. As we find that the reference against the substance of which this appeal is brought was itself an error of law and that, if the reference had been properly made there was no reason to direct substantive consideration of the case, the appeal is dismissed. We declare that the appeal remains pending before the Chief Adjudicator.DISPOSITION:
Appeal dismissedCopyright notice: Crown Copyright
