Zenovics v Secretary Of State For Home Department

Permission to appeal should be granted where a proposed statutory-construction argument is viable and raises an issue of public importance, without requiring the court at the permission stage to quantify the prospects of success.

Where legislation may permit separate certification under the Refugee Convention and the Human Rights Convention, it is arguable that certification under one Convention does not necessarily prevent a second appeal on the other. The existence of an acknowledged legislative anomaly and an administrative policy addressing it does not resolve the underlying question of law.

The applicant renewed an application for permission to appeal against a decision of the Immigration Appeal Tribunal. The proposed appeal concerned whether a certificate under the Immigration and Asylum Act 1999, preventing a second appeal under the Refugee Convention, also prevented a second appeal under the Human Rights Convention where no separate certificate had been issued under that Convention.

A further ground alleged error by the adjudicator in upholding the certificate. The Court considered whether the statutory scheme was sufficiently clear to exclude the proposed argument and whether the issue warranted determination by a full court.

1. Permission on construction. Permission to appeal was granted on the question whether paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 operated separately in relation to the Refugee Convention and the Human Rights Convention. It was reasonably arguable that the provisions were disjunctive, so that certification under one Convention did not necessarily determine whether a second appeal under the other remained available.
2. Viability and public importance. The statutory scheme arguably did not fuse the appeals under the two Conventions so completely as to produce the acknowledged anomaly relied upon by the Secretary of State. The court did not need to predict or quantify the prospects of success at the permission stage. The issue was of public importance and affected other cases.
3. Policy. The Secretary of State’s policy of generally ensuring a second appeal in appropriate cases did not determine the legal issue. It remained a policy which could be changed or departed from.
4. Second ground. Permission was refused on the separate argument that the adjudicator had erred in upholding the certificate. That matter arose from the Secretary of State’s decision and should have been challenged earlier. It was treated as auxiliary to the construction issue.
5. Pepper v Hart. Lady Justice Arden stated that, if reliance on Pepper v Hart [1993] AC 593 was pursued at the full appeal, the Hansard passages relied upon should be clearly identified and the skeleton argument should explain precisely how the conditions for recourse to Hansard were satisfied.
6. Order. Application for permission to appeal allowed on the first ground only. The appeal was ordered to be expedited, with consequential directions for skeleton arguments.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted on the statutory-construction ground and refused on the separate certificate ground.
• Immigration Appeal Tribunal: The Tribunal had upheld the relevant certificate. No citation for its decision was stated in the judgment.