Secretary of State for the Home Department v TB (Jamaica)

A statutory presumption under section 72 of the Nationality, Immigration and Asylum Act 2002 applies generally to asylum decisions and tribunal appeals. A certificate affects the order in which a tribunal considers the issue; it is not a condition of applying the presumption.

However, the Secretary of State cannot bypass an unappealed tribunal determination by making a later administrative decision on a point that could have been raised before the tribunal. That would undermine the statutory appeal scheme. A different result may follow from relevant fresh evidence, changed circumstances, or new events after the determination.

TB, a Jamaican national convicted of a drugs-supply offence, appealed successfully to the Asylum and Immigration Tribunal. The Immigration Judge found that he was a refugee, that return to Jamaica would place him in danger, and that deportation would breach his Convention rights.

The Secretary of State did not raise Article 33(2) of the Refugee Convention or section 72 of the Nationality, Immigration and Asylum Act 2002 before the Tribunal, and did not appeal its determination. She later decided that Article 33(2) applied and refused the five years’ leave which would ordinarily follow from refugee status.

Bean J held that the later decision was unlawful. The Secretary of State appealed. The central issue was whether she could invoke Article 33(2) and section 72 administratively after the binding Tribunal determination.

1. Appeal dismissed. The Secretary of State was bound by the Immigration Judge’s unappealed determination. Her later decision to invoke Article 33(2) and section 72 of the Nationality, Immigration and Asylum Act 2002, and thereby refuse the consequential leave, was unlawful because it was inconsistent with that determination.

2. Section 72(1) gives the statutory presumptions general effect. Once their factual conditions are established, an Immigration Judge must apply them even if the Secretary of State has not issued a certificate under section 72(9). The certificate procedure in sections 72(9) and (10) merely requires the Tribunal to consider the certificate and any rebuttal at the beginning of its substantive deliberation.

3. That construction did not assist the Secretary of State. She could have raised Article 33(2) at TB’s appeal, and could have appealed on the basis that the Immigration Judge failed to apply the presumption. She did neither. Section 72 gives Article 33(2) no special status permitting the Secretary of State to reopen the issue by administrative decision after an adverse Tribunal decision.

4. The statutory appeal scheme would be undermined if the Secretary of State could circumvent a Tribunal’s decision in that way. The court applied the principle recognised in R (Boafo) v Home Secretary [2002] 1 WLR 44 and related authorities: an unappealed adjudicative decision binds the parties. Relevant fresh evidence, a change of circumstances, or events occurring after the decision may justify a different course, but none was present here.

5. The Immigration Judge’s findings that TB’s conviction did not justify interference with his Article 8 rights were also inconsistent with a conclusion that he remained a danger to the community. Had section 72 been raised before her, the presumption of dangerousness would have been rebutted.

6. As an additional observation, Article 33(2) distinguishes danger to national security, for which reasonable grounds are sufficient, from danger to the community following conviction for a particularly serious crime. In the latter case, the refugee must in fact constitute a danger to the community. The Secretary of State’s formulation of reasonable grounds alone was therefore insufficient for that limb.

• Court of Appeal (Civil Division) Dismissed the Secretary of State’s appeal and held that her later administrative reliance on Article 33(2) and section 72 was unlawful.
• High Court, Queen’s Bench Division, Administrative Court Bean J, on 30 November 2007, held that the Secretary of State’s later decision was an abuse of process and unlawful.
• Asylum and Immigration Tribunal The Immigration Judge allowed TB’s appeal on Refugee Convention and human-rights grounds in a determination promulgated on 12 September 2005. The Secretary of State did not seek reconsideration or set aside of that determination.