Vairavanathan, R (on the application of) v Secretary Of State For Home Department

Under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, certification has two stages. The Secretary of State certifies the asylum claim, and the special adjudicator hearing the relevant appeal decides whether to agree with the certification.

A disagreement by the first adjudicator does not extinguish or discharge the certificate. If the Immigration Appeal Tribunal remits the appeal for a fresh hearing, the second adjudicator hears an appeal to which paragraph 5 still applies and retains the statutory power to agree with the certificate. The consequences specified by the Act therefore remain available on remittal.

The respondent, a Sri Lankan national seeking asylum, appealed against refusal of his claim. The Secretary of State certified under paragraph 5(3)(a) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 that the claim fell within the certification procedure and that paragraph 5(5) did not apply.

The first adjudicator dismissed the appeal but did not uphold the certificate. The Immigration Appeal Tribunal allowed the appeal and remitted the matter for a fresh hearing because the first adjudicator may have confused the respondent’s case with another appeal. The second adjudicator dismissed the appeal and upheld the certificate. On judicial review, Grigson J held that the second adjudicator lacked power to reconsider the certificate. The central issue was whether that power survived the remittal.

1. The appeal was allowed unanimously. The first adjudicator’s disagreement did not render the Secretary of State’s certificate a nullity, quash it, or discharge it. It merely removed the restriction on the respondent’s right of appeal to the Immigration Appeal Tribunal.
2. Paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 distinguishes between the asylum claim, the appeal to a special adjudicator, and any appeal to the Immigration Appeal Tribunal. The Secretary of State certifies the claim. The special adjudicator has jurisdiction, under paragraph 5(7), to agree with the factual matters underlying the certificate. The Immigration Appeal Tribunal does not have jurisdiction to review whether the adjudicator should have agreed with it.
3. On remittal, the second adjudicator hears afresh the appeal to an adjudicator against the decision on the claim. The remitted appeal remains an appeal to which paragraph 5 applies. The adjudicator therefore retains the normal and full powers conferred by the Schedule, including the power to agree with the extant certificate.
4. The statutory scheme does not create a separate procedural stage in which an earlier disagreement permanently prevents reconsideration of certification. That construction would produce an anomalous result where the first adjudicator may have addressed the wrong case, while preventing a second adjudicator from considering the correct certificate.
5. The second adjudicator was consequently entitled to uphold the certificate, with the statutory consequence that the respondent had no further right of appeal to the Immigration Appeal Tribunal. There was no order as to costs, subject to legal aid assessment.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal from the judgment of Grigson J.
• Administrative Court: held that the first adjudicator’s disagreement did not discharge the certificate but that the second adjudicator could determine only the matter remitted by the Immigration Appeal Tribunal.
• Immigration Appeal Tribunal: allowed the appeal against the first adjudicator’s determination and directed a fresh hearing before another adjudicator.