United Kingdom / Upper Tribunal, Immigration and Asylum Chamber / [2014] UKUT 205 (IAC) NA v Secretary of State for the Home Department

Key facts of the case:

Appeal on a point of law for rejection of an asylum claim. The Appellant was an Iranian Kurd who claimed that he would face torture, inhuman and degrading treatment or punishment in Iran if returned because of race and imputed political opinion. The Appellant claimed involvement in Democratic Party of Iranian Kurdistan (KDPI). The Appellant claimed that the first tier tribunal had a duty to take positive steps to confirm the authenticity of certain documents on which the Appellant relied in support of his case (a summons to attend court and a medical report) and had erred in law in failing to perform this duty. The Appellant relied on the case of Singh and Others v Belgium from the ECtHR – Belgian Aliens Disputes Board had failed to investigate the authenticity of documents presented to it. The ECtHR insisted on the fact that, given the importance it gives to Article 3 and the irreversible nature of the harm likely to be caused in case of the realisation of the risk of ill treatment, it is the responsibility of the national authorities to show that they are as rigorous as possible and carry out a careful investigation of the grounds of appeal drawn from Article 3 without which the appeals lose their efficiency.

Paragraphs referring to EU Charter (original language): 


16. The final limb of this argument invoked, belatedly, Article 47 of the Charter of Fundamental Rights of the European Union (“the Charter”), in conjunction with Article 39 of Council Directive 2005/85/EC (the “Procedures” Directive). The most recent decision on the status of the Charter in United Kingdom domestic law is R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin). Recalling the earlier combined domestic and European litigation in NS v Secretary of State for the Home Department [2011] EUECJ C-411/10, Mostyn J observed: “[14] The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the [ECHR]. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law …. [and] ….. would remain part of our domestic law even if the Human Rights Act were repealed.” We are mindful that this statement must be considered in the light of one of the cornerstone provisions of the Charter, Article 51(1), which delimits its field of application in the following terms: “The provisions of this Charter are addressed to the Institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.” We turn next to the provision of the Charter, Article 47, on which the Appellant’s argument was based: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a Tribunal in compliance with the conditions laid down in this Article.” Article 39(1) of the Procedures Directive provides: “Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against ….. a decision taken on their application for asylum …..”

17. It is clear from Article 51(1) of the Charter that this instrument is operative in United Kingdom domestic law only when EU law applies to the case or issue in hand. This has been affirmed by the CJEU in a series of decisions: see, for example, Case C- 617/10, Akerberg Fransson, 26/02/13. In the present context, it is not necessary to explore further whether AB went too far because it is uncontroversial that in the asylum appeal before us EU law does apply and that this includes both Article 47 of the Charter and Article 39 of the Procedures Directive.

18. We reject the argument that there was a proactive duty on the FtT to either (a) direct investigation and collation of evidence on the part of the Secretary of State or (b) to undertake its own enquiries and evidence gathering exercise, reposing in these provisions of EU law. We consider, firstly, that the appeal which the Appellant pursued before the FtT provided him with an effective remedy. Its efficacy was not compromised by the fact that it was theoretically possible for stronger or better evidence to have been marshalled in support of his claim for asylum. The shortcomings in the evidence produced by the Appellant, as analysed by the judge, were a feature of the Appellant’s case, to be distinguished from the efficacy of the remedy which he could potentially secure. The FtT was clearly alert to them and we consider that the ensuing balancing and weighing exercise to be undertaken in the prevailing litigation context was a matter for it. We are satisfied that, in these respects, there was nothing unlawful in the FtT’s conduct of the appeal. 10

19. Secondly, we are satisfied that the remedy available to the Appellant in the present case complied with the three requirements articulated by the ECtHR in Singh [90] viz he enjoyed, and exercised, recourse to a deciding authority which was available and accessible; the relevant national authority (the Secretary of State) was competent to examine the Appellant’s claim and, given the context, did so independently and rigorously; and, throughout the process, the Appellant was protected from removal from the United Kingdom: see [90] – [92]. There was no suggestion in argument that the effective remedy requirements of EU Law (specifically Article 39 of the Procedures Directive and Article 47 of the Charter) differ in any material respect from those of European human rights law.

20. Thirdly, we are unable to derive from either Article 39 of the Procedures Directive or Article 47 of the Charter a duty on the part of the FtT to conduct the kind of proactive investigation and evidence-gathering exercise suggested on behalf of the Appellant. This is neither expressly stated nor to be reasonably implied. Furthermore, it is to be emphasised that a central requirement of both Article 39 and Article 47 is that the effective remedy be provided by an independent and impartial tribunal: we consider that each of these crucial qualities would be compromised by the kind of exercise for which the Appellant contends, as this would trespass on the universally recognised values of judicial independence and impartiality. Finally, we consider that the words “established by law” import a requirement that the court or tribunal concerned act in accordance with and within the limits of the powers and jurisdiction conferred on it by the relevant law. As we have already ruled, the case management powers conferred on the FtT and the Upper Tribunal are discretionary and essentially procedural in nature, designed to operate in a manner and for a purpose quite different from the wide-ranging duty canvassed on behalf of the Appellant. Moreover, these powers most be exercised in a manner which reflects the tribunal’s fundamental duties of neutrality and impartiality. Thus the “law” in play does not provide for the judicial duty for which the Appellant contends.

Deciding body (original language): 
Upper Tribunal (Immigration and Asylum Chamber)