Zenovics, R (on the application of) v Secretary of State for the Home Department

Where a person challenges one immigration decision on grounds arising under both the Refugee Convention and the Human Rights Convention, there is one appeal containing two distinct claims. Certification of one claim under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 removes the further right of appeal only in respect of that claim. It does not prevent an appeal to the Immigration Appeal Tribunal concerning an uncertified claim.

Paragraph 9(2) must therefore be read as providing that, where the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate, paragraph 22 confers no right of appeal to the Tribunal in respect of that claim.

The appellant claimed that removal to Latvia would contravene both the Refugee Convention and the Human Rights Convention. The Secretary of State certified only the Refugee Convention claim. An adjudicator rejected both claims and upheld that certification.

The Immigration Appeal Tribunal held that certification of the Refugee Convention claim deprived it of jurisdiction to entertain any further appeal, including an appeal concerning the uncertified human-rights claim. The appellant challenged that conclusion. The central issue was whether paragraph 9(2) of Schedule 4 to the Immigration and Asylum Act 1999 barred the entire further appeal or only the certified claim.

1. Appeal allowed. Lord Justice Schiemann delivered the judgment of the court. The matter was remitted to the Immigration Appeal Tribunal so that it could consider whether leave to appeal should be granted.

2. An appeal is identified by the administrative decision challenged. The removal direction was one administrative decision, and the statutory grounds under sections 65(1) and 69(5) of the Immigration and Asylum Act 1999 produced one appeal to the adjudicator on two grounds. The existence of rights under separate statutory provisions did not create two appeals.

3. Within that single appeal, the assertion that removal would breach the Refugee Convention and the assertion that it would breach the Human Rights Convention were properly regarded as two claims. That construction accorded with the Secretary of State’s obligation to identify clearly which claim and which subparagraph formed the basis of a certificate.

4. A literal reading of paragraph 9(2) would have made the mere certification of one claim capable of extinguishing the right of appeal concerning unrelated or uncertified grounds. That consequence could not reasonably have represented Parliament’s intention. It would create disproportionate unfairness, discourage Convention claims and increase the risk that unlawful decisions or breaches of international obligations would remain uncorrected.

5. Paragraph 9(2) was accordingly given a rectifying construction. Where the adjudicator agrees with the opinion expressed in the Secretary of State’s certificate, paragraph 22 removes the right of appeal to the Tribunal only in respect of that claim. The certification of the Refugee Convention claim therefore did not bar a further appeal concerning the uncertified human-rights claim.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to the Immigration Appeal Tribunal to consider whether leave to appeal should be granted.
2. Immigration Appeal Tribunal: Held that certification of the Refugee Convention claim deprived it of jurisdiction to hear an appeal concerning the uncertified human-rights claim.
3. Adjudicator: Rejected the Refugee Convention and Human Rights Convention claims and agreed with the Secretary of State’s certification of the former.