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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dupovac v. Secretary of State for home Department [2000] EWCA Civ 10 (21 January 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/10.html
Cite as: [2000] EWCA Civ 10
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Case No: IATRF 1999/0151/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 21 January 2000
LORD JUSTICE WALLER
LORD JUSTICE CHADWICK
and
SIR CHRISTOPHER SLADE
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ZINAIDA DUPOVAC |
Appellant | |
- and - |
||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
N Blake Esq QC, Raza Husain (instructed by Sutovic and Hartigan for the Appellant)
Mr A Underwood (instructed by the Treasury Solicitor for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
Friday, 21 January 2000
LORD JUSTICE WALLER:
This appeal raises an issue of statutory construction of general importance to certain pending immigration appeals. The issue is whether the words "by reason of the appellant leaving the United Kingdom" in section 33(4) Immigration Act 1971 ("IA 1971"), as amended by paragraph 4(2) of schedule 2 to the Asylum and Immigration Act 1996 ("AIA 1996"), mean that leaving the United Kingdom is merely permissive or presumptive of abandonment of an appeal, or whether they mean that leaving is determinative of abandonment.
Since the appellant has, since this appeal was launched, in fact been granted indefinite leave to remain, the pursuit of this appeal so far as she is concerned, has become academic. Furthermore, the wording of section 33(4) as amended is soon to have no consequence in that by section 58 of the Immigration and Asylum Act 1999 a different form of wording has been adopted to cover circumstances such as the present case. However, we were told that there were some 100 appeals pending in relation to which the proper construction of section 33(4) as amended would be relevant. We were further made aware of the fact that at public expense leading counsel and junior counsel had already fully prepared for this appeal and thus it seemed to us that despite its academic nature, so far as the appellant was concerned, we should proceed to hear the appeal.
The facts of the instant case provide a good basis on which to approach the issue of construction. The appellant is a national of Bosnia-Herzegovina born on 22 October 1928 in Sarajevo. She was forced to leave her home on 9 June 1992 owing to her fear of ethnic cleansing by Serbian forces. She arrived in the United Kingdom on 10 June 1993 and was granted leave to enter as an au pair. On 19 August 1993 the appellant claimed asylum.
By letter of 26 January 1994 the Secretary of State for the Home Department (SSHD) refused to recognise the appellant as a refugee but granted her exceptional leave to remain in the United Kingdom. The appellant's appeal against such refusal was allowed by a special adjudicator but that decision was reversed on appeal by the IAT.
By letter dated 22 December 1995 the appellant's solicitors applied for the appellant's status to be "upgraded" to that of refugee. This application was refused by the SSHD for reasons contained in a letter dated 5 September 1996. On that day the SSHD also granted the appellant further exceptional leave to remain in the United Kingdom until 26 January 1998. The appellant appealed by notice under section 8(2) of the Asylum and Immigration Appeals Act 1993. That notice was dated 13 September 1996.
On 1 October 1996 there came into force paragraph 4(2) of schedule 2 of AIA 1996 which amended section 33(4) of the IA 1971. The section as amended provided as follows:-
"(4) For the purposes of this Act an appeal under Part II shall, subject to any express provision to the contrary, be treated as pending during the period beginning when notice of appeal is duly given and ending when the appeal is finally determined or withdrawn or is abandoned by reason of the appellant leaving the United Kingdom; and an appeal shall not be treated as finally determined so long as a further appeal can be brought by virtue of Section 20 or Section 9 of the Asylum and Immigration Appeals Act 1993 nor, if such an appeal is duly brought, until it is determined or withdrawn."
(It is the italicised words which were inserted by Schedule 2 paragraph 4(2) AIA 1996)
On 20 March 1997 the appellant embarked from the United Kingdom on a travel document which the SSHD had provided. She travelled to Italy for the purpose of a short social visit and returned to the United Kingdom during the currency of her extant leave after approximately 2 weeks on 5 or 6 April 1997.
By letter dated 26 November 1997 the SSHD stated
"from 1.10.96 all appeals . . . will be abandoned if the appellant leaves the UK"
and accordingly deemed the appellant to have abandoned her appeal under section 33(4) IA 1971 as amended. On 15 December 1997 the appellant's solicitors requested that the SSHD's allegation of abandonment be determined as a preliminary issue under paragraph 23(4)(c)(i) Asylum Appeals (Procedure) Rules 1996.
In a determination promulgated on 30 December 1997 the Special Adjudicator ruled that the appeal had been abandoned since the appellant had left the United Kingdom (albeit temporarily) and thus dismissed her appeal. The IAT granted leave to appeal to the IAT on 23 January 1998. The IAT by a majority dismissed the substantive appeal in a decision notified on 6 August 1998 holding that the meaning of section 33(4) as amended was clear and that leaving was determinative of the abandonment of an appeal.
The IAT granted leave to appeal to the Court of Appeal on 6 January 1999 and it is that appeal which has come on before us.
Mr Blake QC, for the appellant, submitted that the statute should be strictly construed against the SSHD so as to limit the circumstances in which a refugee's appeal must be treated as abandoned in those cases where the circumstances would suggest no intention whatever on the part of the refugee to give up an appeal. He identified for us the different categories of persons to whom the section could apply if the SSHD's construction of the sub-section is correct. First he identified a limited class of persons, who, even if they left the United Kingdom while their appeal was pending, would have a right to return without leave. As I understood the submission that class was likely to be small, being diplomats, crew members or possibly persons who went on one day bus trips to the continent on one passport. Second was the class of persons such as the appellant who had exceptional leave with a limit on duration, where that duration had not expired when they left and then returned to the United Kingdom. In their case if they went to a country or territory outside the common travel area their leave lapsed (see Section 3(4) of the 1971 Act), but as a matter of practice that leave would be renewed on their return within the limit of the original duration subject to the same conditions as contemplated by Section 3(3)(b). Third there was the category of persons, who, if they left and went to a country or territory outside the common travel area, simply could not re-enter without further leave. In this category would be a vast number of persons who, for example, had had orders for deportation made or been refused asylum and were remaining in the United Kingdom and were protected from being deported while their appeals were pending; those for example to whom section 14(2) and section 15(2) of the IA 1971 applied, and those to whom section 6, and paragraph 8 of Schedule 2 of the Asylum and Appeals Act 1993 applied.
It was Mr Blake's submission that it was really to this last category of
persons that the amendment was directed, persons who were in the United Kingdom
only because appeals were pending, and who, if they left, should be presumed to
have abandoned their appeals.
If the statute has the effect of deeming appeals to be abandoned in
circumstances such as those that existed in the appellant's case, I accept that
the result is draconian. If a person goes on a social visit to a territory
outside the common travel area, and returns well within the duration of the
period of exceptional leave already given and which is as a matter of practice
bound to be given on her return, and who in no sense has intended to abandon
her appeal, it seems harsh that she should be deemed to have done so.
The difficulty is however that there is nothing in the statute which would
allow a different construction of the section depending on whether the person
concerned fell within the third category identified by Mr Blake or the category
in which the appellant falls. Mr Blake cannot spell out of the language, as he
was arguing at one stage, that in the third category case leaving the United
Kingdom will be as good as deemed abandonment, but in others it will be a
question of fact as to whether abandonment has taken place. To succeed in his
argument Mr Blake has to satisfy us that leaving the United Kingdom is never by
itself determinative of the question whether an appeal is abandoned.
To put it another way he must show that in addition to showing that a person
has left the United Kingdom the SSHD would have to demonstrate in every case
that the person had also abandoned their appeal.
The fundamental problem for Mr Blake is that as has been confirmed in R v
Immigration Appeal Tribunal and the Lord Chancellor ex parte Ali [1998]
INLR 526 persons may abandon their appeal without leaving the United Kingdom.
If (as on Mr Blake's construction would be necessary) an investigation is
required even where a person has left the United Kingdom as to whether in
addition they have actually abandoned their appeal, why are the words "by
reason of the appellant leaving the United Kingdom" there? As Carnwath J in
Ali himself decided they are not there so as to demonstrate that it is
only if the person leaves the United Kingdom that he or she can be
taken to have abandoned their appeal. They are not there because persons
within the United Kingdom never do abandon their appeals. They can only be
there as the determinative factor so far as any person who leaves the United
Kingdom is concerned.
Mr Blake sought to gain some comfort from the fact that the 1996 Procedure
Rules seemed to acknowledge that an appeal can exist where an appellant is out
of the country. He relies on Rule 33(1)(a) and Rule 35(1)(b) which do allow
for the determination of an appeal in the absence of an appellant if he is not
within the United Kingdom. These rules still have an application, as it seems
to me, in relation to appeals under section 3(2) of the 1996 Act. Mr Blake
places great emphasis on the fact that under section 3(2) appeals cannot be
brought, or, (as he emphasises) pursued whilst the Appellant was in the UK.
He submits thus that it would be unlikely that a procedure rule was
designed to give an adjudicator a discretion to hear an appeal in a person's
absence with words in the primary legislation of that kind.
I am not clear why the procedural rule should not give that discretion, but in
any event this point cannot alter the plain meaning of the words in section
33(4) as amended.
I should finally add one caveat which may be relevant in construing the 1999
Act as well. That Act I should say has put beyond doubt in relation to those
to whom it applies that simply leaving the United Kingdom will be deemed an
abandonment of an appeal (see Section 55(5) and (8)). What Mr Blake did not,
and possibly could not, argue on the facts of this appeal was that the
appellant had not left the United Kingdom. It was put to Mr Blake in the
course of the hearing before us, the question as to what would be the position
if someone simply sailed out to sea and then back again during one afternoon.
He rightly declined to wrestle with that problem. I would wish to reserve the
question as to whether there may not be circumstances when despite a physical
leaving of the shores of the United Kingdom, the physical leaving will not
constitute "leaving" the United Kingdom within the words as used in the
statute.
I would dismiss the appeal.
LORD JUSTICE CHADWICK:
As Lord Justice Waller has pointed out in his judgment, with which I entirely
agree, the short issue raised by this appeal is whether the words "by reason of
the appellant leaving the United Kingdom" in the context of section 33(4) of
the Immigration Act 1971 are to be construed as determinative, or as merely
permissive or presumptive. To put the point in a slightly different way, the
question is whether the words "is abandoned by reason of the appellant leaving
the United Kingdom" require the adjudicator or the Appeal Tribunal (as the
case may be) to treat an appeal as abandoned on the appellant leaving the
United Kingdom; or require the adjudicator or the Appeal Tribunal to consider
whether the fact that the appellant has left the United Kingdom does, in the
circumstances of each particular case, lead to the conclusion that the appeal
has been abandoned.
The appellant contends that there must be consideration to the particular circumstances of each case. But, if that is correct, the inclusion of the words "by reason of the appellant leaving the United Kingdom" must, as it seems to me, lead to the conclusion that Parliament has determined that it is only in cases in which the appellant has left the United Kingdom that the question of an abandonment of the appeal can arise, at least in the context of section 33(4) of the 1971 Act. On that hypothesis it would not be open to the adjudicator or to the Appeal Tribunal to conclude, however strong the evidence, that the appeal has been abandoned in a case where the appellant has not left the United Kingdom. I would find that a strange conclusion; given that it is not difficult to think of factual situations from which (notwithstanding the appellant's continued presence in the United Kingdom) the only proper inference was that he had abandoned his appeal. That that conclusion is not only strange, but wrong, has been demonstrated by Mr Justice Carnwath in R v Immigration Appeal Tribunal and the Lord Chancellor, ex parte Ali [1998] INLR 526, to which Lord Justice Waller has referred.
If the words "by reason of the appellant leaving the United Kingdom" have not
been included in order to restrict cases of abandonment to those in which the
appellant has left the United Kingdom, then there is no escape from the
question: for what other purpose have they been included? Mr Blake QC, on
behalf of the appellant, was unable, as it seems to me, to provide any answer
to that question. In my view, the only answer which can be given to that
question is that the words have been included in order to require the
adjudicator, or the Appeal Tribunal, to treat an appeal as abandoned on the
appellant leaving the United Kingdom, without further inquiry into the facts of
the particular case. That may seem a draconian result; but I see no escape from
it. In the light of section 58 of the Immigration and Asylum Act 1999 it may,
perhaps, seem less surprising than it would otherwise have done that that was
Parliament's intention when the words were introduced into the 1971 Act by
paragraph 4(2) of schedule 2 to the Asylum and Immigration Act 1996. But the
conclusion to which I am driven does not depend on hindsight derived from the
1999 Act. It is, in my view, the necessary effect of the words introduced in
1996.
I should add that I express no view on the circumstances in which a person will
be held to have left the United Kingdom in the context of section 33(4) of the
1971 Act - a question which may well arise, also, under the 1999 Act. It does
not arise in this appeal; it being accepted that, whatever the precise nature
of that requirement, it was satisfied in the present case.
SIR CHRISTOPHER SLADE:
I agree with both judgments and think it unnecessary to add anything of my own.
Order: Appeal dismissed - no costs. Order does not form part of approved
judgment.