ASYLUM AND IMMIGRATION TRIBUNAL

TM (s94 certificate:  jurisdiction) Zimbabwe [2006] UKAIT 00005

THE IMMIGRATION ACTS

Heard at: Bradford Hearing Centre		Date of Hearing:  2 December 2005

Before:

Mr C M G Ockelton (Deputy President)
Mrs C E Roberts (Senior Immigration Judge)

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		Mr Rhys-Davies instructed by Switalski’s Solicitors
For the Respondent: 	Ms Peterson, Home Office Presenting Officer

It is for the Tribunal to decide whether an appeal has in fact been certified under s94.

DETERMINATION AND REASONS

1.	The Appellant, who has claimed to be a citizen of Zimbabwe, arrived in the United Kingdom on 24 July 2004 and claimed asylum.  On 4 November 2004, asylum having been refused, she was refused leave to enter the United Kingdom.  She appealed.  Her appeal was heard by an Immigration Judge, Mr S M Hildreth, and allowed.  Reconsideration was ordered at the instance of the Secretary of State.

2.	Although the Appellant has always claimed to be a citizen of Zimbabwe, it is apparently the Respondent’s view that she is or may be a citizen of South Africa.  The reasons for refusal letter sets out the Respondent’s challenges to the Appellant’s claim in some considerable detail.  The Immigration Judge concluded that the Appellant’s claim of Zimbabwean nationality and her account of her history were both established to the appropriate standard.  He allowed the appeal on asylum and human rights grounds.

3.	At the beginning of the reconsideration hearing, Ms Peterson who appeared for the Respondent submitted that the Immigration Judge erred in hearing the appeal at all because he had no jurisdiction to do so.  She reminded us that we ought to consider matters of jurisdiction even if they have not been previously raised.  She drew our attention to the fact that, at the beginning of the letter of refusal, the Respondent had written as follows:

“You have claimed asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in South Africa, the country which is listed in s94(4) of the Nationality, Immigration and Asylum Act 2002.”

4.	The notice of decision has, at the end, these words:

“You cannot appeal while you are in the United Kingdom because a certificate has been issued under s94 of the Nationality, Immigration and Asylum Act 2002.”

5.	We considered the matter.  Section 94 reads, so far as relevant, as follows:

“(1)	This section applies to an appeal under s82(1) where the appellant has made an asylum claim or a human rights claim (or both).  
…
(2)	A person may not bring an appeal to which this section applies [in reliance on s92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3)	If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a state listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.”

6.	There is no doubt that the effect of such a certification is that there is no in-country right of appeal if the possibility of appealing from within the United Kingdom was one which depended upon s92(4), as this one does.  South Africa is one of the states named in s92(4).

7.	We have no jurisdiction to question whether a claim was properly certified.  The question whether there has been certification in any particular case is, however, a matter for us.  The notice of decision in this case clearly refers backward in time to certification having already taken place.  It follows that the certification, if any, must be found within the reasons for refusal letter.  We find nothing in that letter which indicates that the Secretary of State was satisfied that the Appellant was entitled to reside in South Africa (as distinct from merely challenging her to prove that she was not), nor do we find any wording indicating certification under s92(2) as is required by the statute.  We therefore ruled that this appeal was not certified under s92 and that the Appellant has an in-country right of appeal.

8.	Ms Peterson told us that she did not seek to rely on the grounds upon which reconsideration was ordered.

9.	In the circumstances, we find that there was no error of law in the previous determination of the Tribunal, which shall stand.

C M G OCKELTON
DEPUTY PRESIDENT

          Date: