STARRED SP (Pre-2000 decision: human rights?) (Sri Lanka)

Factual and Procedural Background

The Appellant, a Sri Lankan Tamil, appeals against a decision made by an adjudicator in September 1998 refusing his asylum application. The central procedural issue concerns whether the Tribunal is entitled to consider the Human Rights Act 1998 in relation to this appeal, given that the decision under appeal was made prior to the commencement of relevant provisions of the Immigration & Asylum Act 1999 and the Human Rights Act coming into force on 2 October 2000.

Legal Issues Presented

1. Whether the Tribunal is entitled to consider human rights issues under the Human Rights Act 1998 and Section 65 of the Immigration & Asylum Act 1999 in appeals relating to decisions made before 2 October 2000.
2. Whether the Immigration and Asylum Act 1999 (Commencement No. 6 Transitional and Consequential Provisions) Order 2000 effectively excludes consideration of human rights in such pre-October 2000 cases.
3. Whether the Tribunal can disregard the Commencement Order on the basis that it is ultra vires and conflicts with the Human Rights Act 1998.
4. What procedural guidance should be given to adjudicators when faced with applications to consider human rights issues in appeals relating to pre-October 2000 decisions.

Arguments of the Parties

Appellant's Arguments

• The appellant contends that the Tribunal should consider human rights issues under the Human Rights Act 1998 despite the decision being made before 2 October 2000.
• It was argued that the Commencement Order deferring the application of Section 65 is ultra vires because it conflicts with the Human Rights Act 1998, and therefore should be disregarded by the Tribunal.

Respondent's Arguments

• The Secretary of State submits that the Commencement Order excludes human rights appeals for decisions made before 2 October 2000 and that the Tribunal must apply this legislative provision.
• It was argued that Section 22(4) of the Human Rights Act 1998 prevents human rights issues being raised in existing appeals relating to acts before 2 October 2000.
• The Secretary of State provided assurances that appellants refused on asylum grounds will have an opportunity to raise human rights objections at the stage of removal, which would be subject to appeal under Section 65.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the relevant legislation, particularly Section 65 of the Immigration & Asylum Act 1999, which introduces a human rights appeal right, and the Immigration and Asylum Act 1999 (Commencement No. 6) Order 2000, which restricts the application of Section 65 to decisions made on or after 2 October 2000. The Court found that the Order clearly prevents the Tribunal from considering human rights issues in appeals relating to decisions made before that date.

The Court acknowledged the appellant's argument that the Commencement Order might be ultra vires due to conflict with the Human Rights Act 1998 but emphasized that such a challenge is a matter for the Administrative Court, not the Tribunal. The Court then considered whether the Human Rights Act 1998 independently requires the Tribunal to consider human rights and concluded that Section 6(1) makes it unlawful for a public authority to act incompatibly with Convention rights, but the Tribunal's dismissal of an appeal on pre-October 2000 decisions does not itself constitute such unlawful action.

The Court focused on the reality that the Secretary of State's subsequent removal decision is the operative act potentially breaching human rights. It accepted the assurances given that appellants will have an opportunity to raise human rights claims at the removal stage, ensuring compliance with Section 6(1) of the Human Rights Act.

Regarding procedural guidance, the Court advised adjudicators not to adjourn appeals for human rights issues but to decide the appeal on the grounds before them. If the appeal is dismissed, appellants could then raise human rights points in a fresh application or appeal relating to the removal decision. The Court emphasized that findings of fact by adjudicators are relevant and binding on the Secretary of State in subsequent human rights considerations.

The Court also noted that adjudicators should not consider material solely relevant to human rights claims since such matters may require fuller examination at the removal stage and are not suitable for recommendations. Special circumstances may warrant a different approach, but generally, the appeal should proceed without adjournment for human rights issues.

Holding and Implications

The Tribunal held that it is not entitled to consider human rights issues under the Human Rights Act 1998 or Section 65 of the Immigration & Asylum Act 1999 in appeals relating to decisions made before 2 October 2000.

The direct effect of this decision is that appellants with pre-October 2000 decisions cannot raise human rights grounds in their current appeals before the Tribunal or adjudicators. However, they retain the right to raise human rights objections at the stage of removal, which will be subject to appeal under Section 65. The Court emphasized that this decision is binding on all adjudicators and Tribunal members to ensure consistency until possibly overturned by the Court of Appeal.

No new precedent was set beyond the binding guidance on the application of existing legislation and procedural conduct in human rights-related asylum appeals.