“The fact that he was released without charge does not mean that the Appellant was not of further interest to the authorities when he was released on payment of a bribe or that the appellant’s details were not recorded and placed on a national data base.”
“In this Part "immigration decision" means – (a). refusal of leave to enter the United Kingdom,… (d). refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,….. (g). a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) (ba) or (c) of theImmigration and Asylum Act 1999 (c.33) (removal of person unlawfully in the United Kingdom)”
“(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”
“(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds – (a) that the decision is not in accordance with the immigration rules;… (c) that the decision is unlawful undersection 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;….. (d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by the immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful undersection 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.” (a) that the decision is not in accordance with the immigration rules;… (c) that the decision is unlawful undersection 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;….. (d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom; (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by the immigration rules; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful undersection 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.”
“120 Requirement to state additional grounds for application (1) This section applies to a person if – a) he has made an application to enter or remain in the United Kingdom, or b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him. (2) The Secretary of State or an immigration officer may by notice in writing require the person to state – (a) his reasons for wishing to enter or remain in the United Kingdom, and (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. (3) A statement under subsection (2) need not repeat reasons or grounds set out in- (a) the application mentioned in subsection (1)(a), or (b) an application to which the immigration decision mentioned in subsection (1)(b) relates.” a) he has made an application to enter or remain in the United Kingdom, or b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him. (a) his reasons for wishing to enter or remain in the United Kingdom, and (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom. (a) the application mentioned in subsection (1)(a), or (b) an application to which the immigration decision mentioned in subsection (1)(b) relates.”
“(1)This section applies where a person (“the appellant”) has appealed under theSpecial Immigration Appeals Commission Act 1997 or this Act and that appeal (“the original appeal”) has been finally determined. (2) If the appellant serves a notice of appeal making a claim that a decision of the decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion – a) the appellant’s claim - (i) could reasonably have been included in a statement required from him under section 74 but was not so included, or (ii) could reasonably have been made in the original appeal but was not so made; (b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and (c) the appellant had no other legitimate purpose for making the claim. a) the appellant’s claim - (i) could reasonably have been included in a statement required from him under section 74 but was not so included, or (ii) could reasonably have been made in the original appeal but was not so made; (b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and (c) the appellant had no other legitimate purpose for making the claim. (4). Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal. (5). The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal. (6). On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined. (7). Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant. (8). The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion- (a) one purpose of making an the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and (b) the appellant had no other legitimate purpose for making the application. (9). No appeal may be brought under the Special Immigration Appeals Commission At 1997 or this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).”
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content (i) had not already been considered; and (ii) taken together with the previously considered material created a realistic prospect of success, not withstanding its rejection.” (i) had not already been considered; and (ii) taken together with the previously considered material created a realistic prospect of success, not withstanding its rejection.”
“Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representation should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 [that is to say the criteria for grant of an asylum] will be satisfied. In considering whether to treat representations as a fresh claim, the Secretary of State will disregard any material which (i) is not significant; or (ii) is not credible; or (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined.” (i) is not significant; or (ii) is not credible; or (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined.”
“An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by the Convention and Protocol; and (iii) refusing his application would result in his being required to go (whether immediately or after the time limited by any existing leave to entry or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.” (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by the Convention and Protocol; and (iii) refusing his application would result in his being required to go (whether immediately or after the time limited by any existing leave to entry or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.”
“There being a realistic prospect of success on appeal in the Claimant’s Refugee Convention andArticle 3 ECHR claims, the Defendant’s decision to certify the Claimant’s claims and deny the Claimant a right of appeal to an immigration judge is irrational. The common law principle that provisions which restrict right of access to a court must be narrowly construed (see for example SSHD v Saleem [2000] Imm AR 529) applies with particular force where the claim engagesArticle 3 ECHR . It is submitted that the exclusion of a right of appeal by certification where there is a validArticle 3 ECHR claim is incompatible with the procedural safeguards inherent inArticle 3 ECHR . Pursuant tosection 3 Human Rights Act 1998 , section 96 of the 2002 Act can be read and given effect in a way which is compatible with Convention rights by precluding certification and the consequent loss of appeal rights where there is a validArticle 3 ECHR claim.”
“Your client is seeking to rely on matters that could and should have been raised at the hearing of his appeal. Consequently it has been decided to apply a certificate to this claim. … Your client is seeking to rely on matters that could and should have been raised in the Statement of Additional Grounds that he was required to complete as part of the One Stop process. Consequently it has been decided to apply a certificate to this claim.” (Emphasis added.)
“Your client seeks to lay the blame for misleading the Immigration Service and the Adjudicator at the door of his previous representatives, Ratna & Co. The Home Office cannot intrude into the dealings between an applicant and his legal adviser beyond pointing out that, if he feels that he has been badly advised, he should make a complaint to the Law Society. Your client states that his original statement was not read back to him until the day before his appeal hearing at which time he found it to be full of errors. Your client attended the appeal hearing and had a full opportunity to make any further statements, amendments or clarifications he wished. You are referred to paragraph 7 of the Adjudicator’s Determination: “With the assistance of an interpreter, the appellant gave evidence to me. He dealt with the preparation of his statement and corrected some dates in that statement as noted on the copy on file. Subject to those amendments, he adopted the statement as his own evidence-in-chief”
“If we were to accept your client’s statement as the unvarnished truth it would mean that he had knowingly lied to the Home Office and Adjudicator. Your client was represented at appeal by Counsel who could have warned him of the serious consequences of this.”
“It is inconsistent with the prohibition on refoulement under the Geneva Convention Relating To The Status of Refugees 1951 (“the Refugee Convention”) and with the absolute prohibition on torture contained inArticle 3 ECHR to deprive a person who has a current disputed and arguable asylum andArticle 3 ECHR claim of a right of appeal against an adverse immigration decision before removal to the country of feared persecution.”
“6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one of more provisions of primary legislation, the authority could not have acted differently;…..”
“No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”
“The obligation of the United Kingdom under the [refugee] Convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of return. A refugee (as defined) has a right not to be returned to such a country and a further right not to be returned pending a decision as to whether he is a refugee (as defined) or not”
“Parliament must have intended that the strengthened reference to the Refugee Convention in primary legislation would be treated by the courts as an incorporation of the Refugee Convention into domestic law…in my view it is clear that the Refugee Convention has been incorporated into our domestic law”
“The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department ex parte Sivakumaran[1988] AC 958 , 990G; Lord Steyn in R (Roma Rights Centre) v Immigration Officer at Prague Airport(United nations high commissioner for refugees intervening) [2004] UKHL55,[2005] 2AC1 , paras 40-42;section 2 of the Asylum and Immigration Appeals Act 1993 ; and para 328 of Statement of Changes in Immigration Rules (HC395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While therefore one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation.”
“…the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. …the prohibition provided by Article 3 against ill treatment is equally absolute in expulsion cases. Thus whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion (see the above mentioned Vilvarajah and Others judgment page 34 para 103). In these circumstances the activities of the individual in question however undesirable or dangerous cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by article 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see para 61 above).”
“It is obviously important that there is an in country appeal in asylum and human rights claims at least engagingArticle 3 ECHR . A claimant with a current well-founded fear of persecution may face irreparable harm on return if his or her claim is dismissed and the claim can only be exercised from abroad…Where there is a current and disputed asylum or human rights claim it would make every sense for the appeal by which the outcome is disputed to have suspensive effect and enable it to be brought before removal in order to give practical effect to the non-refoulement principle reflected in article 33(1) Refugee Convention.”
“It would in my judgment undermine the beneficial object of the Refugee Convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh “claim for asylum (781F).”
“It cannot have been the intention of Parliament that an applicant for asylum should be denied the right of appeal simply because he had previously made an unsuccessful application for leave to enter on another ground. It is inherently unlikely above all in asylum cases that Parliament should have intended to emasculate the right of appeal in this way.”
“Parliament cannot have intended that immigration officers should be required to issue successive refusals of leave to enter each attracting a right of appeal on the same claim.”
“I do not accept the Tribunal’s conclusion that a refugee sur place who has acted in bad faith falls outwith the Geneva Convention and can be deported to his home country notwithstanding that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although his credibility is likely to be low and his claim must be rigorously scrutinised, he is still entitled to protection of the Convention and this country is not entitled to disregard the provisions of the Convention by which it is bound if it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered.”
‘(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2). This section— (a). applies to primary legislation and subordinate legislation whenever enacted; (b). does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c). does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.’
‘On this the first point to be considered is how far, when enacting section 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative. Since section 3 relates to the "interpretation" of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of section 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, section 3 would be available to achieve Convention-compliance. If he chose a different form of words, section 3 would be impotent. From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant.In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed.’ [Emphasis added]
“Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved.” “It is necessary to state what section 3(1), and in particular the word "possible", does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word "possible" in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR. Thirdly, the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation.”
“This does not mean that it is necessary to identify an ambiguity or absurdity in the statute (in the sense of being open to more than one interpretation) before giving it an abnormal meaning in order to bring itinto conformity with a Convention right: see R v A (No 2)[2002] 1 AC 45 , 67, 87, per Lord Steyn and Lord Hope of Craighead. I respectfully agree with my noble and learned friend, Lord Nicholls of Birkenhead, that even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point. The court must "strive to find a possible interpretation compatible with Convention rights" (emphasis added): R v A[2002] 1 AC 45 , 67, para 44, per Lord Steyn. But it is not entitled to give it an impossible one, however much it would wish to do so.”
“…where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words.” “For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc[1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd[1990] 1 AC 546 suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute” [Emphasis added]
“Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review…Nor am I persuaded that the House of Lords' decision in Al-Mehdawi precludes this Court having regard to the wider interests of justice here, not least given that this is an asylum case rather than a student leave case as wasAl-Mehdawi.”
“The result in Al Mehdawiwas that a foreign student whose leave to remain had expired forfeited his entitlement to an appeal hearing because of his solicitors' errors. Not only did the case not concern the possibility of returning somebody to persecution, torture or death; it left to the Home Secretary, if he thought the application had merit, a power to invite an adjudicator to hear the applicant's evidence and report whether in his opinion it would have made a difference to the decision: see p.901. Although Lord Bridge's opinion is carefully framed in terms of principle and not of pragmatism, the case before the House was far distant from the kind of case we are concerned with. These cases do not only involve asylum–seekers who are either making a first appeal or have lost their first appeal and are making a second endeavour to establish their claim: they include asylum seekers who have won their initial appeal before an immigration judge and are seeking to hold the decision against the Home Secretary's appeal. For some of these, the exercise of the right to be heard may literally be a matter of life and death; for all of them save the bogus (and even they have to be identified by a judicially made decision) it is in a different league from the loss of a student's right to remain here. The remedial discretion which afforded Mr Al Mehdawi a fallback is absent from asylum law.”
“If fresh evidence which was clearly available at the time of an appeal is put before the Secretary of State and he accepts that it is both credible and does show that there is a real risk that if returned the individual will suffer a breach of Article 3 of his Human Rights, it would then be wrong for the Secretary of State to disregard it purely because it was available at the relevant time.”
“35. If any representations are made after one appeal has been determined the Secretary of State will consider them in order to decide whether they amount to a fresh claim. If he concludes that they do, but his decision on that fresh claim is not in favour of the applicant, that is a decision on an application which would normally give rise to the possibility of an appeal and appeal notices will be sent out to the applicant. Conversely if he decides that the representations do not amount to a fresh claim the applicant can only obtain relief by seeking judicial review 36. Where the Secretary of State makes a decision which does give rise to the possibility of an appeal he can then contemplate certification pursuant to section 73(8)[of the 1999Act] ”
“…the acid test must always be whether comparing the new claim with that earlier rejection and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim, despite the unfavourable conclusion reached on the earlier claim”
“…we would not it as showing that Ladd v Marshall principles have `no place' in public law. Rather it shows that they remain the starting point, but there is a discretion to depart from them in exceptional circumstances”.(paragraph 82) In Gungor Collins J observed at [19]: “The effect of all that, as I see it, is that, as the court said in E,Ladd v Marshall is the starting point and availability is a factor to be taken into account and certainly will be given considerable weight because it is important that there should be finality. It seems to me that in cases of availability the court should look with care to see whether in reality the evidence could have affected the result and if ignored would mean that there was a risk that human rights would be breached.”
“…if fresh evidence which was clearly available at the time of an appeal is put before the Secretary of State and he accepts that it is both credible and does show that there is a real risk that if returned the individual will suffer a breach of Article 3 of his human rights it would then be wrong for the Secretary of State to disregard it purely because it was available at the relevant time.” (para 17). That was, as Collins J said, an extreme example. It is also materially different from the present case in that the Secretary of State has not accepted that the fresh evidence is credible or that it shows that there is a real risk that the Claimant will suffer a breach of Article 3 if returned to Sri Lanka. He has found the evidence to be incredible and has only found that there is a realistic prospect that the claimant might succeed in persuading the IAT to take a different view. Collins J’s comment was also made in the context of construing an immigration rule (the old Rule 346) rather than primary legislation with which I am concerned in this case. However the dictum well illustrates why it is that the courts have been astute to avoid where possible the application of strict Ladd v Marshall principles in the context of asylum and human rights claims. As Collins J said earlier in the same paragraph, referring to the head note in The Queen on the application of Haile v Immigration Appeal Tribunal [2002] INLR 283: “That approach to Ladd v Marshall in the context of asylum cases recognises that there is a conflict between the need for finality and the need to ensure that there is the sufficient anxious scrutiny to ensure no-one is returned to persecution. In the human rights context it has added importance because both the court and the Secretary of State as public bodies have an obligation to ensure that they do not breach any human rights in a decision that they make and accordingly there is a need to be satisfied that the decision that is in fact made is not one which can be said to fall into that category.”
“There is no doubt that the court does have the power to and indeed should depart from the strict principles in Ladd v Marshall indeed any strict principles if the interests of justice so require.”
“However we would not regard it as showing that Ladd v Marshall principles have “no place” in public law. Rather it shows that they remain the starting point but there is a discretion to depart from them in exceptional circumstances”
“The effect of that as I see it is that, as the court said in E, Ladd v Marshall is the stating point and availability is a factor to be taken into account and certainly will be given considerable weight because it is important that there should be finality. It seems to me that in cases of availability the court should look with care to see whether in reality the evidence could have affected the result and if ignored would mean that there was a risk that human rights would be breached.”
“Part IV of the Act deals with the various aspects of appeals and, as it seems to me, it has three main objectives – (1) to grant specific rights of appeal, for example to those who claim that in the context of immigration their human rights have been infringed (section 65) or who have been refused asylum (section 69) (2) to ensure that if an appeal is brought it will be comprehensive and cover every available ground for seeking relief (section 74) (3) to prevent abuse of the appellate system – see for example section 73, which only operates where one appeal (the original appeal) has been finally determined.” (1) to grant specific rights of appeal, for example to those who claim that in the context of immigration their human rights have been infringed (section 65) or who have been refused asylum (section 69) (2) to ensure that if an appeal is brought it will be comprehensive and cover every available ground for seeking relief (section 74) (3) to prevent abuse of the appellate system – see for example section 73, which only operates where one appeal (the original appeal) has been finally determined.”
“ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
“It must be born in mind that these cases concerned complaints under Articles 8 and 10 of the Convention and that the examination required the Court to have regard to the national security claims which had been advanced by the Government. The requirement of a remedy which is “as effective as can be” is not appropriate in respect of a complaint that a person’s deportation will expose him or her to a real risk of treatment in breach of Article 3, where the issues concerning national security are immaterial. In such cases given the irreversible nature of the harm that might occur if the risk of ill treatment materialised and the importance the court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State. Such scrutiny need not be provided by a judicial authority but if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective. In the present case neither the advisory panel nor the Courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security consideration. On the contrary, the court’s approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chaahal against a danger to national security (see paragraph 41 above). It follows from the above consideration that these cannot be considered effective remedies in respect of Mr Chahal’s Article 3 complaint for the purposes ofArticle 13 of the Convention . Moreover the court notes that in the proceedings before the advisory panel the applicant was not entitled inter alia to legal representation, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraph 30, 32 and 60 above). In these circumstances the advisory panel could not be considered to offer sufficient procedural safeguards for the purpose of Article 13. Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3 (see para 150, 151, 152, 153, 153, 155)”
“Is it for the Court to assume upon such a challenge the primary fact-finding role? Must we, in other words, decide for ourselves whether on all the material before us we for our part regard the applicant (and those in like case) as subject to the risk in question? Or are we exercising what still remains essentially a supervisory jurisdiction, heightened though our responsibilities would undoubtedly be in the context of so fundamental a human right as that at stake here?”
“70. In its Vilvarajah and others judgment and its Soering judgment the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English Courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. 72. The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment. He relied on the reasoning in the Chahal v United Kingdom judgment. However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify the expulsion of Mr Chaahal. No such considerations arise in the case at issue.”
“138…the present applications can be contrasted with the cases of Soering and Vilvarajah cited above. In those cases the Court found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Court’s own approach underArticle 3 of the Convention .”
“Mr Nicol’s argument runs essentially as follows. “the Court’s own approach underArticle 3 of the Convention ” (see concluding words of paragraph 138) is, he says, plain. It is that set out in paragraph 108 of its judgment in Vilvarajah and in paragraphs 95 and 97 of its judgment in Chahal: the ECHR will rigorously examine all the material before it and make its own assessment on risk as at the date of the hearing that, therefore, must be the approach of the domestic court too: only thus will it have “coincided with” the ECHR’s approach (as paragraph 138 states that it does) and so explain why the court regards judicial review as an “effective remedy” in Article 3 cases (save of course, in Chahal where the national security aspect of the case precluded the domestic courts from forming their own view upon it), but not in a case like Smith and Grady itself.”
“40. The Court is not persuaded that the authorities of the respondent State conducted any meaningful assessment of the applicant’s claim, including its arguability. It would appear that the applicant’s failure to comply with the five day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran (see paragraph 16 above). In the Court’s opinion, the automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied inArticle 3 of the Convention . It fell to the branch office of the UNCHR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Ankara Administrative Court, on her application for judicial review, limited itself to the issue of the formal legality of the applicant’s deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. 42. Having regard to the above considerations the Court finds it substantiated that there is a real risk of the applicant being subjected to treatment contrary to Article 3 if she would be returned to Iran. … 48. The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy and allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see the Chahal judgment cited above). 49. The Court reiterates that there was no assessment made by the domestic authorities of the applicant’s claim to be at risk if removed to Iran. The refusal to consider her asylum request for non-respect of procedural requirements could not be taken on appeal. Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However this course of action entitled her neither to suspend its implementation nor to have an examination of the merits of her claim to be at risk. The Ankara Administrative Court considered that the applicant’s deportation was fully in line with domestic law requirements. It would appear that, having reached that conclusion, the court felt it unnecessary to address the substance of the applicant’s complaint, even though it was arguable on the merits in view of the UNCHR’s decision to recognise her as a refugee within the meaning of the Geneva Convention. 50. In the Court’s opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attached to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure inpugned. Since the Ankara Administrative Court failed in the circumstances to provide any of these safeguards, the Court is led to conclude that the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13. Accordingly there has been a violation ofArticle 13 of the Convention ”
“Subject to any requirement of the rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator.”
“However I would confine that conclusion to the particular context in which it arises in this case: that is, to the notification of adjudicators’ determinations. It is the combination of the tight time limit, with no discretion to extend whatever the circumstances, with the irrebuttable presumption of receipt whatever the circumstances, which has the effect which Parliament cannot have intended to authorise.”
“The Claimant is essentially contending that the Secretary of State cannot lawfully exercise his power under section 96 of the 2002 Act in respect of a fresh claim, on the basis that it is incompatible with s.6 of the HRA or otherwise unreasonable under the common law. But as a matter of general principle, this does not make any sense.”
“In R (Noorkoiv) v Secretary of State for the Home Department[2002] 4 All ER 575 the Court of Appeal was concerned with an Article 5 (4) claim and the requirement for a speedy determination of the lawfulness of detention. In such a case lack of resources could not be relied on by the defendant. Buxton LJ referred to counsel’s recognition that she could not dispute that the Strasberg Court would not regard the failure to provide the necessary resources as a defence to a claim that there was a breach of Article 5 (4) and proceeded to reject her submission that the situation was different before the domestic courts. …Article 5 (4) imposed, as Buxton LJ put it at paragraph 25, “a more intense obligation than that entailed in the need for a prompt trial of people who are not in custody.”
“The system devised to deal with the situation must recognise that there will be delays which are thoroughly undesirable. It must also be appreciated that there is a continuing detriment in that individuals whose allegedly fresh claims have not been dealt with are in the limbo referred to in the 1998 White Paper. If they are genuine refugees, they are entitled to the rights conferred by the Convention and, if they are not, their position should be known within a reasonable time. It is also important that the system caters for the possibility of advancing consideration of applications if exceptional or compassionate circumstances are shown. The question is whether the manner in which the backlog is being dealt with is in all the circumstances reasonable and fair overall. It is not for the court to require greater resources to be put into the exercise, no doubt to the detriment of other matters which must be funded by the government, unless persuaded that the delays are so excessive as to be unreasonable and so unlawful.” (paragraph 21). The distinction being drawn was with the requirement under Article 6 (1) of a fair trial within a reasonable time. In Procurator Fiscal v Watson [2002] 4 All ER, the Privy Council had considered the “reasonable time requirement”