Farkondeh v Special Adjudicator & Anor

Certification of an asylum claim as frivolous or vexatious may follow consideration of the merits, including a finding that the claimant’s credibility is fundamentally unreliable. The certification grounds in paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 overlap and are not mutually exclusive. An adjudicator must ordinarily agree with the same relevant sub-paragraph as the Secretary of State, but may uphold a paragraph 9(6)(c) certificate notwithstanding a different case or evidence advanced on appeal. Certification should not be routine merely because credibility is rejected; it is appropriate where the claim is bound to fail.

The appellant, an Iranian woman, claimed asylum on the basis that she was a lesbian and feared persecution in Iran. The Secretary of State rejected her account and certified the claim under paragraph 9(6)(c) of Schedule 4 to the Immigration and Asylum Act 1999 as frivolous or vexatious. The Adjudicator dismissed the appeal and upheld the certificate. Keith J dismissed the appellant’s judicial review challenge on 14 February 2002. The appeal concerned whether a claim could be certified after an adverse credibility assessment, whether the Adjudicator had upheld the certificate on the correct statutory basis, and whether a new case advanced before the Adjudicator prevented agreement with the certificate.

1. The appeal was dismissed. The Court of Appeal, in the judgment of Simon Brown LJ, with Buxton LJ and Carnwath LJ agreeing, held that the approach in R v Special Adjudicator ex parte Paulino & Edoukou [1996] IAR 122 remained applicable. A claim may be frivolous or vexatious because it does not engage the Convention on its face, or because examination of the evidence shows that the claimant’s credibility is manifestly unreliable on matters fundamental to the claim.

2. The later statutory context did not alter that construction. The various certification grounds in paragraph 9 were capable of overlapping. The Secretary of State was therefore entitled to certify under paragraph 9(6)(c) after considering the merits and forming the view that the appellant’s basic account was manifestly unreliable.

3. An adjudicator may agree with a paragraph 9(6)(c) certificate even if the facts also appear to support paragraph 9(6)(b). Those characterisations are not mutually exclusive. The adjudicator must ordinarily agree with the same relevant sub-paragraph of paragraph 9 as the Secretary of State, consistently with Zenovics v Home Secretary [2002] INLR 219, paragraph 16; but a conclusion that a claim falls within paragraph 9(6)(b) subsumes the view that it also falls within paragraph 9(6)(c).

4. The introduction of a different case or different evidence before the Adjudicator did not, by itself, prevent the certificate from being upheld. Otherwise an applicant could defeat the certification procedure by manipulating the presentation of the claim.

5. The court stressed, as an important qualification, that certification under paragraphs 9(4)(b), 9(5)(b), 9(6)(b) or 9(6)(c) must not become routine merely because a claim is rejected on credibility grounds. Certification is appropriate only where the claim is, for whatever reason, bound to fail. The appellant retained a right to seek leave to appeal to the Immigration Appeal Tribunal on her Human Rights Convention claim because the certificate covered only the Refugee Convention claim.

6. The appellant was ordered to pay the respondents’ costs, to be determined by a Costs Judge under the Community Legal Services (Costs) Regulations 2000.

• Court of Appeal (Civil Division): Appeal dismissed from the decision of Keith J dated 14 February 2002.
• High Court: Keith J dismissed the appellant’s judicial review challenge to the Adjudicator’s decision.
• Special Adjudicator: Mrs Nichols dismissed the asylum appeal and upheld the certificate on 20 March 2001.