Dube v Secretary of State for the Home Department

Under paragraph 9(2) of the Asylum and Immigration Act 1999, an adjudicator’s agreement with a certificate removes any further appeal to the Immigration Appeal Tribunal in respect of the certified claim. The Secretary of State may withdraw the certificate before that agreement occurs, but not afterwards. Creating a post-adjudication withdrawal power would require re-drafting primary legislation. The possible convenience of avoiding inconsistent outcomes, or the availability of a fresh asylum claim, did not justify that construction. Partial certification remains subject to the separate rule that only the certified claim is barred from further appeal.

The respondent, a Zimbabwean national, claimed asylum and alleged that removal would breach his rights under the Refugee Convention and ECHR. The Secretary of State refused leave to enter and certified the asylum claim under paragraph 9 of Schedule IV to the Asylum and Immigration Act 1999. An adjudicator dismissed the appeal, rejected the respondent’s account and agreed with the certificate.

Following the Court of Appeal’s decision in Zenovics, the respondent obtained a right to appeal his uncertified human-rights claim to the Immigration Appeal Tribunal. He sought withdrawal of the asylum certificate so that the asylum issue could also be considered. Keith J held that the Secretary of State had power to withdraw the certificate after the adjudicator’s decision and had acted irrationally in failing to do so. The central issue was whether that post-adjudication power existed.

Lord Justice Simon Brown delivered the judgment, with Lord Justices Buxton and Carnwath agreeing. The appeal was allowed. The declaration made below was reversed, and the court held that the Secretary of State had no power to withdraw a paragraph 9 certificate after the adjudicator had promulgated a decision agreeing with the opinion expressed in it.

1. Meaning of paragraph 9(2). On its ordinary meaning, paragraph 9(2) provides that, once the adjudicator agrees with the certificate, paragraph 22 does not confer a further appeal to the Immigration Appeal Tribunal in respect of the certified claim. The Secretary of State may withdraw the certificate before the adjudicator agrees with it, because withdrawal then removes the possibility of such agreement. After agreement, withdrawal would have no legal effect.
2. Partial certification. The court agreed with the construction adopted in Zenovics [2002] EWCA Civ 273: where only one claim is certified, the loss of the further appeal is confined to that claim. The possibility of inconsistent findings following an appeal on an uncertified human-rights claim did not justify creating a post-adjudication withdrawal power.
3. Statutory construction and alternative remedies. The proposed construction would create a broad and potentially indefinite power, expose decisions to further judicial review and require words to be added to primary legislation. The court found no sufficient or compelling reason for doing so. The certification scheme still provided a binding merits determination by an independent adjudicator. The decision in Secretary of State for the Home Department v Asifa Saleem [2001] 1 WLR 443, concerning invalid subordinate legislation, did not support re-drafting the 1999 Act.
4. Fresh asylum claim. Obiter, the court observed that if a successful human-rights appeal disclosed an asylum entitlement, the Secretary of State would have to recognise it or accept that there were grounds for a fresh asylum claim. That possibility did not determine whether a second appeal lay.

There was no order as to costs, save for detailed assessment of the respondent’s costs for Community Legal Aid funding.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 114, the Secretary of State’s appeal was allowed. The court ruled that a paragraph 9 certificate could not be withdrawn after the adjudicator had agreed with it.
2. High Court of Justice, Queen’s Bench Division: On 15 October 2002, Keith J held that the Secretary of State had power to withdraw the certificate after the adjudicator’s decision and had irrationally failed to exercise that power.
3. Immigration Appeal Tribunal: The respondent’s human-rights appeal, enabled by the decision in Zenovics, was dismissed on 30 January 2003, rendering the present appeal academic as between the parties.