The High Court refused an applicant’s request for a certificate that would allow an appeal to the Supreme Court on a point of law about oral hearings before the Refugee Appeals Tribunal (RAT).
The proposed question was whether the RAT had jurisdiction to proceed with an appeal hearing without the Refugee Applications Commissioner or a representative present. The application was made under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.
The request followed an earlier High Court judgment, delivered on 2 March 2010, which held that the Commissioner’s presence was not indispensable to the RAT’s jurisdiction to hold an oral appeal hearing under section 16(10) of the Refugee Act 1996, as amended. The court was not deciding that underlying issue again. It considered whether the proposed question met the statutory test for a certificate: that it involve a point of law of exceptional public importance and that an appeal be desirable in the public interest.
The judgment recognised that the issue could affect other hearings and was a matter of public importance. However, it found that the question did not have the additional characteristics needed to make it exceptionally important. The court described it as an issue of statutory interpretation and procedure in a discrete area, affecting occasional cases, rather than rights generally or the asylum process as a whole. It also said legal certainty had been achieved for the Tribunal, the Commissioner, practitioners and parties following the earlier ruling.
The court rejected the argument that it should speculate about whether its earlier judgment might lead the Commissioner to attend hearings only rarely. It said the importance of the point had to be assessed objectively.
The certificate was refused. The judgment does not grant permission for a Supreme Court appeal on the proposed question.