Farkondeh, R (on the application of) v Special Adjudicator & Anor

In asylum certification cases, a certificate under Immigration and Asylum Act 1999, Schedule 4, paragraph 9 must comply strictly with the statutory requirements and identify the basis relied on. Where the Secretary of State certifies a claim as frivolous or vexatious, it is arguable that the adjudicator must agree with that particular basis. Reliance in substance on manifest fraud may make the certificate legally fragile. The court considered it unlikely that the frivolous-or-vexatious limb was confined to claims raising no Convention issue, but left its precise scope open. A renewed application for permission to appeal was granted without determining the merits.

The applicant, an Iranian citizen, entered the United Kingdom clandestinely and claimed asylum principally on the basis of feared persecution because of her sexual orientation. She also claimed fear of persecution as a failed asylum seeker. The Secretary of State refused the claim and issued a certificate under Schedule 4, paragraph 9 of the Immigration and Asylum Act 1999, relying on paragraph 9(6)(c) and stating that paragraph 9(7) did not apply.

The special adjudicator dismissed the appeal and upheld the certificate. Keith J dismissed the applicant’s judicial-review challenge, which had been limited to the certification issue. On a renewed application, the Court of Appeal considered whether the certificate’s wording, the scope of paragraph 9(6)(c), and the adjudicator’s treatment of the evidence raised arguable grounds for an appeal.

Decision

Laws LJ gave the only reasoned judgment. The court granted permission to appeal. It did not determine whether the certificate was ultimately lawful or whether the asylum claim succeeded.

1. Strict compliance. Certificates under Schedule 4, paragraph 9 must comply strictly with the statutory requirements and specify what the statute requires. Anxious scrutiny is required in cases where certification removes a further right of appeal and may terminate welfare support under Part VI of the Immigration and Asylum Act 1999.
2. Certificate language. The challenge that the Secretary of State had failed to state whether the claim was frivolous or vexatious was not, by itself, a strong linguistic point. A reference to paragraph 9(6)(c) could sufficiently identify those alternatives to a reader familiar with the statute. Similarly, there was no real argument that the certificate had to explain why paragraph 9(7) did not apply or reproduce its wording exactly. The added reference to there being no evidence relating to torture was capable of being treated as shorthand.
3. Correspondence between certificate and adjudicator’s decision. It was arguable that, once the Secretary of State relied on a particular ground in paragraph 9(6), the certificate could stand only if the adjudicator agreed with that ground. The adjudicator’s finding that the claim had been fabricated and was manifestly fraudulent created a legally arguable mismatch with the certificate, which relied on frivolousness or vexatiousness.
4. Scope of paragraph 9(6)(c). The court doubted that the provision was confined to claims containing no allegation engaging Convention rights. Guidance examples suggested that a claim based on wholly incompatible facts or repeated applications could be frivolous or vexatious. The precise scope of the provision was left open because it was unnecessary to decide it on a permission application.
5. Risk on return. The adjudicator had found that the applicant might face imprisonment or a fine for breach of Iranian exit regulations. Although Keith J considered that consequence arose from breach of Iranian immigration rules following an unsubstantiated asylum claim, the point could support the argument that the adjudicator’s agreement with the certified ground was legally fragile.

Permission was therefore granted on the renewed application.

• High Court (Administrative Court): Scott Baker J initially refused permission for judicial review on the papers. Goldring J granted permission on renewal, limited to the certification issue.
• High Court (Administrative Court): Keith J dismissed the judicial-review application on 14 February 2002.
• Court of Appeal (Civil Division): Laws LJ refused permission on the papers on 12 April 2002. On renewal, the court granted permission on 9 May 2002: [2002] EWCA Civ 788.