B v Secretary of State for the Home Department (Serbia And Montenegro) [2003] UKIAT 00052 (22 July 2003) [2003] UKIAT 00052
UKIAT
B v Secretary of State for the Home Department (Serbia And Montenegro) [2003] UKIAT 00052 (22 July 2003)
[2003] UKIAT 00052 · 2003-07-08
[5]24 th February 2003 before Mr. H H R Crawshay, an Adjudicator. The Adjudicator dismissed the appeal on asylum grounds but purported to allow the appeal on human rights grounds (Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)). The Adjudicator did not agree with the opinion expressed in the certificate. Accordingly, a right of appeal lies to the Tribunal. 3. Leave to appeal to the Tribunal was granted because the Vice President granting leave considered that the grounds of appeal raised a properly arguable issue of law. In the grounds of appeal, it is asserted that, given that the decision of the Secretary of State was made on 25 th June 2000, the Adjudicator did not have jurisdiction to consider any human rights issues. It is asserted that the appeal before the Adjudicator related to the Claimant's asylum claim. In this connection, reliance was placed on the Tribunal's Starred Determination in Selvaratnam Pardeepan v. SSHD (00/TH/2414). > 4. At the hearing before us, Mr. Kodagoda sought to persuade us that the Adjudicator did have jurisdiction to consider the human rights issues which appeared relevant on the evidence which was before him. In this respect, Mr. Kodagoda relied on the following.(i) The appeal before the Adjudicator was heard at a time when the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) was in force. The overriding objective of the 2002 Act is to achieve the speedy and fair disposal of appeals against immigration decisions.(ii) The Adjudicator had before him a statement from the Claimant, which the Claimant adopted at the hearing. Mr. Kodagoda submitted that this statement was a statement within the meaning of Section 120 of the 2002 Act. In paragraphs 6, 11 and 12 of his statement, the Claimant referred to matters which, in effect, meant that Article 8 was being relied upon, although Article 8 was not in fact specifically mentioned.(iii) If it was accepted that the Claimant's statement was a Section 120 statement, then (Mr. Kodagoda submitted), under the provisions of Section 85(2) of the 2002 Act, the Adjudicator was obliged to consider any matters raised in the Claimant's statement which constitute a ground of appeal of a kind listed in Section 84(1) against the decision appealed against. Section 84(1) permits an appeal to be brought on human rights grounds. Furthermore, Section 85(3) of the 2002 Act states that Section 82(2) applies to a statement made under Section 120 whether the statement was made before or after the appeal was commenced. Section 85(4) permits the Adjudicator to consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.(iv) If we found that there was any ambiguity in the interpretation of the 2002 Act, then Mr. Kodagoda submitted that we ought to apply the principle that a statute should be construed so as to advance a remedy, rather than suppress a remedy. In reply, Ms. Webb relied simply on the grounds of application. 3. (1) Subject to Schedule 2, the new appeals provisions are not to have effect in relation to events which took place before 1 st April 2003 and, notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events. 4. (1) In this Order – (a) "the new appeals provisions" means sections 82 to 99 and sections 101 to 103 of the 2002 Act; together with ……… (b) "the old appeals provisions" means – (i) ……. (ii) subsections (1) to (4) of section 8 of the 1993 Act; ……. (c) "the old Immigration Acts" means the 1971 Act, the 1988 Act, the 1993 Act, the 1996 Act, the 1997 Act and the 1999 Act, all without the amendments made by the 2002 Act. (3) For the purposes of article 3 and Schedule 2, an event has taken place under the old Immigration Acts where – (a) a notice has been served; (b) a decision was made or taken; (c) directions were given; and (d) a certificate was issued. (4) For the purposes of this Order – (a) a notice was served; (b) a decision was made or taken; (c) directions were given; and (d) a certificate was issued on the day on which it was or they were sent to the person concerned ………… Decision The appeal of the Secretary of State is ALLOWED. Ms. D. K. GILL CHAIRMAN Vice President CHECK Date: 10 th June 2003